Tuesday, May 26, 2015

Tethered to Your Work Smartphone? That May Mean Overtime Pay

When I was a younger attorney, I worked for a firm where the first name on the letterhead had strange work hours.  He would stay at home in the morning with his kids and generally arrive at the office around 11.  Often, he would exasperatedly wonder where everyone was during the noon hour.  He was also the one who would work later into the evening.  Needless to say, he expected his employees to be available day and night.  I recall him telephoning one of his partners as she was on her way to the hospital (she was in labor) asking her about a particular case!

There were several instances where this partner would expect responses to his inquiries late at night or early in the morning.  While attorneys are usually exempt employees, there is now a question about whether answering e-mails, phone calls, texts, etc. after work hours could lead to a claim for overtime. 

With the rise of company-issued smartphones and the expectations that one is always within reach of that smartphone, employees are working at all hours by answering those after hours e-mails, calls, or texts from the boss or the client.  This has given rise to a slew of lawsuits regarding overtime pay.  These lawsuits are fairly new and have not set any precedents regarding the line between answering one e-mail and "overtime." 

Adding to this wave of lawsuits is the expected updated rules from the Labor Department raising the salary floor.  By raising the salary floor, there will be significantly more employees eligible for overtime pay pursuant to the Fair Labor Standards Act. 

If you are an employer, what do you do? First, be sure to implement (and stick to) a policy regarding expectations for use of smartphones or other devices during non-work hours.  The policy should include reporting of time worked outside of the normal work hours for that employee.  Second, make sure to pay the appropriate overtime pay for work performed remotely above and beyond the normal work hours.  Third, if you have an expectation that employees work around the clock (e.g. requiring them to provide customers with their mobile number or e-mails in order to ask you questions), then you may want to adjust the work schedule of that employee to include a set amount of time (one hour?) as part of the work day. Fourth, you may want to consider capping the amount of time spent working remotely during off hours.  Finally, you may want to implement a "no working on the smartphone after hours" policy. 

Keep in mind, if the time spent by the employee working remotely is not significant (e.g. answering one or two e-mails every so often), it is unlikely that will qualify for overtime pay. It may be wise to get an idea from the non-exempt employees who work via their smartphones (especially company-issued devices) how much time they spend using those devices for work-related matters when not "on the clock."  That way, you can fashion an appropriate policy to handle such matters.  Generally, it is wiser to take care of these types of matters on the front end because any successful lawsuit for overtime pay includes liability for the plaintiff's attorneys fees, as well as penalties.    

Monday, April 6, 2015

Left Shark Update

Update:  Having taken the uber aggressive course, Greenberg Traurig had to back off when the attorney realized that he may not be able to bully Mr. Sosa so easily.  Here's the letter. And the response to that letter.

Friday, February 13, 2015

Another One for the Big Firms Are Not Always the Smartest Option . . .

I have met my share of potential clients who look at me as a "lowly solo" and express that they would prefer to have that big name, big international firm represent their interests.  I always tell these potential clients to be careful what they wish for because big firms are not always the best option.  Katy Perry's "Left Shark" of Super Bowl infamy proves my point.

As some of you may or may not know, during the Super Bowl half time show, Katy Perry performed her song "California Gurls."  Her stage for this song had a beach theme and two dancing sharks on each side of her.  Needless to say, the shark on her left appeared to have either been asleep or completely absent during rehearsals.  So he (or she) made up his (her) own moves without regard to the apparent choreography.  This, in turn, provided much internet and social media fodder.  In fact, "Left Shark" became a pretty popular meme subject.

Well, to the point about big firms--that usually have several layers of staff and attorneys working on your matter at gargantuan hourly rates . . . One of Katy Perry's attorneys at Greenberg Traurig sent a gentleman in Florida, Mr. Sosa, a cease and desist letter claiming that the shark images and costumes were protected by copyright(s).  You can view the letter and the response to the letter here.

You see, Mr. Sosa began offering 3-D printed "Left Shark" figurines for a mere $25.00 a piece.   Initially, Mr. Sosa decided to stop printing the figurines and avoid the legal hassle.  However, he had a change of heart and received help from a law professor who specializes in copyright law.  Professor Sprigman responded to Greenberg Traurig's letter by pointing out the ridiculousness of claiming a shark costume as a copyright.  He also pointed out that, even if copyrightable, Ms. Perry in an interview before the show indicated that she may not have created the shark costume, and therefore, did not own the copyright.  Interestingly, the cease and desist letter does not include a registration for the shark costume copyright which means that Ms. Perry could not sue Mr. Sosa until she obtained one.  Of course, even if she tried to get a registration, it is not likely the Copyright Office would issue it for a costume. 

As I have advocated on this blog before, it is important to defend and protect your intellectual property, but you should probably actually own it before you allow big law firm to hastily fire off a cease and desist letter. 

Tuesday, February 10, 2015

La Liga's Valencia CF Irks DC Comics

Valencia CF recently redesigned their logo and it caught the attention of DC Comics.  The Spanish soccer club's logo, according to DC Comics, looks quite similar to Batman's calling card.  Here are the two side by side:

While Valencia has used a bat in its logo since 1919, the wings of the primary logo for the team are angling downward.  It was the change of the wing's angle upward that made DC Comics file a complaint in European Union's trademark organization.

Of note is that the batman logo originally appeared in 1939 and it has undergone variations in that time as well.  It will be interesting to see the results of DC Comics' lawsuit. 

Tuesday, January 27, 2015

From Crowdfunding to Crowdsourcing

A while ago, I wrote about companies using "regular Joes" to research patent prior art or create advertising.  Now, it appears that companies are taking it a step further by using crowdsourcing to assist the companies with marketing concepts and content.  You may be familiar with the concept of Kickstarter or Indiego as a way for entrepreneurs and small businesses to raise money for their products by obtaining small amounts of money from a large amount of potential customers.  

Now, companies like Quiksilver, Jamba Juice, and the band One Direction have turned to creative sourcing websites like Talenthouse and Tongal.  Here's how it works (as I understand it):  the Companies pay a fee to post a need; artists (musicians, videographers, etc.) pitch their proposal to fill the need of the  company; the best submissions then get paid for their submissions.  I understand in some instances the payout can be many thousands of dollars, but usually a few hundred dollars is the norm.  The websites have an added feature in that users register with the site can weigh in and vote for their favorite submission(s).  Of course, the company has the final say regarding which submission(s) it will accept, but this can be a good way to gauge how consumers may view the work. 

For big companies, these sites give them a chance to break away from stale ideas and infuse new ones.  They also are able to select several works targeting specific regions or demographics, as opposed to the "one size fits all" marketing campaign.  For artists, it gives them a way to get their work out there without having to drudge through the ranks of an advertising agency or other type of company.  It allows the artists to freelance, too. 

Tuesday, December 23, 2014

Interesting Issues Over Cigar and Rum Brands May Come Up With a Thawing of Relations Between Cuba and the United States

Lifting of the Cuba embargo by the United States could create disputes over rights to the Cohiba brand.  Cohiba is one of the biggest brands for Cuban cigar.  There is another Cohiba brand made in the Dominican Republic which is the one which finds its way to American retailers.  The owner of the Dominican Republic brand is Scandinavian Tobacco Group ("STG").  STG recently won a trademark dispute with the owner of the Cohiba brand in Cuba, Cubatabaco, in the United States.  It took STG 16 years, but it finally succeeded in obtaining the rights to the brand, Cohiba, in the United States.  As a result, the distributor for Cubatabaco (a state tobacco company of Cuba), must sell its "Cohiba" cigars in the United States under other brands.  

A similar issue arises in the rum arena.  Bacardi & Co. ("Bacardi") began as a Cuban company, but left Cuba after the Castro government nationalized its operations.  The rights to the brand in Cuba (and elsewhere) belonged to the Havana Club.  Following its departure from Cuba, Bacardi fought with Cuban and French spirits maker, Pernard Ricard SA over the rum brand owned by Havana Club.  In 1997, Bacardi purchased Havana Club and then obtained a series of rulings in United States courts giving it the rights to the Bacardi brand in the United States.  Pernard Ricard will distribute rum to the United States under a different brand--and will market its new brand as the "genuine" Cuban rum in Cuba for those who visit Cuba and wish to bring some home.  Meanwhile, Bacardi indicated that it may consider a return to Cuba if there is improvement in the relations between Cuba and the United States and an improvement in human rights in Cuba. 

Tuesday, November 11, 2014

Another Dead Trademark Being Revived

If you are my age, you may remember one of the hottest high-end audio brands was Technics.  I remember how DJs coveted a Technics turntable.  Heck, even now, DJs remain attracted to the last turntable carrying the Technics brand--made in 2008.  The owner of the brand, Panasonic, decided to consolidate its corporate brands.  As a result of that consolidation, Technics was put out to pasture, so to speak.

Well, now, Panasonic is reviving the brand.  Panasonic hopes to attract those who are looking for more high-resolution audio since the current most common data formats are compressed (to fit on your music player, smartphone, or other device).  Since Panasonic is seeing the compressed format (which is more affordable) market shrinking, it believes that it is time to bring back Technics and capture a broader market.  Stay tuned.