by Erica Intzekostas on December 15, 2009
Larry Flynt, the owner of Hustler magazine, has sued his nephews for trademark infringement. The lawsuit alleges that the nephews are using the Flynt brand name to market inferior pornographic films. His nephews, however, are also named Flynt (Jimmy Flynt, II and Dustin Flynt), and so they are contending that they are simply marketing their films under their own surname. Interestingly, from what I am able to ascertain from the USPTO’s public records, both parties have apparently filed trademark applications for the brand name Flynt. Thus far the USPTO has refused to grant registration to either party for the Flynt brand name on the basis that it is merely a surname.
by Garrett Spangler on December 14, 2009
Probate (proh-bayt), n. 1. The judicial procedure by which a testamentary document is established to be a valid will; the proving of a will to the satisfaction of the court. vb. 1. To admit a will to proof. 2. To administer a decedent’s estate.
I find myself breaking out the old Black’s Law Dictionary every now and then just to confirm that “probate” is not in fact defined as a “plague” or “the black death.” I frequently hear people discuss probate like this but when I ask them why most people don’t know or cite some ill-gotten facts about cost and time.
First, the cost shouldn’t scare anyone away because, at least in Pennsylvania and many other states, it’s tied to the value of the estate assets. Even if the executor decides to hire an attorney to help with the distribution of the estate, most attorneys are more than happy to provide just as much help as the executor might need to guide them through the administration process. A retainer is usually required to acquire the attorney’s services initially, but the final cost is still paid as an estate administration expense and is deductible on the estate tax return.
Second, the time probate requires is not excessive. Yes it will take a number of months to tie up everything and close the estate but that pales in comparison to the upkeep of a living trust designed to avoid probate. They will have to be maintained for all the years between when it is created and the year you eventually die. Plus, if for any reason you forget or decide to hold an asset personally instead of in trust, you will still have to go through probate for those items.
As a matter of fact, most people hold their assets in ways that will pass outside their will and the probate process anyway. Any asset that you own jointly with a right of survivorship, like your family bank accounts, house, and cars, will pass right to the joint owner. Plus, retirement plan benefits, life insurance, individual retirement accounts, and annuities all pass to their named beneficiaries outside of probate.
Don’t get me wrong, there are many reasons to avoid probate and you should get some advice about what is in your own best interest. You might own a highly complex estate, have a high profile and wish to avoid publicity, hold estate assets well in excess of the $3.5 million estate/death tax exemption, or know your family is going to dispute your will and you want a stronger document. Ultimately it just doesn’t make sense for most people to spend any time, money, or effort to avoid probate.
So is it worthwhile to avoid probate? Don’t just take your crazy Uncle Johnny at his word, talk to a professional who can give you the proper guidance. Remember, the last time Uncle Johnny told you to trust him with a decision about life you ended up with matching Chuck Norris tattoos.
by Erica Intzekostas on December 11, 2009
Between the abundance of alcohol, raised spirits, people dressed in party gear, and tons of witnesses, the office holiday party is a ripe field for sexual harassment. It is not uncommon for an employee (sometimes, even, a member of upper management) to become intoxicated and start flirting or acting inappropriately with other employees. Years ago, this may have been seen as par for the course of holiday parties. Even today in other countries this kind of behavior is seen as the norm and tolerated. However, in the United States today this kind of behavior can result in the company getting slapped with a sexual harassment claim.
One of the best ways to reduce the risk of a sexual harassment claim is by not serving alcohol, or, at the very least, taking some of the measures outlined in my earlier blog to limit the amount of alcohol consumed. It is also important for upper management to be alert and take action if they witness any behavior that “doesn’t look right”. For example, if a supervisor sees an employee acting inappropriately towards another employee (e.g. standing too close, inappropriately touching, using suggestive language, etc.), that supervisor should step in and intervene. The supervisor should then privately speak to the employee who appeared to be acting inappropriately and determine if that employee is too drunk and should be asked to leave (with appropriate arrangements made to ensure the employee gets home safely). If handled correctly and prudently, this kind if refereeing can be usually be done without causing alarm to any of the employees, even the employees involved, and can help fend off sexual harassment lawsuits.
As a general rule, your company should have a published harassment policy (such as in the employee handbook) and procedures for dealing with claims, including company forms to be completed and filed by anyone who believes she or he is being harassed. These are essential tools for protecting the employer not just at the company holiday party, but year round.
by Elisa Jaehner on December 10, 2009
For European tourists the falling dollar is a dream. Never before has a US vacation been so affordable and not just worldly travelers are taking weekend shopping trips to New York City. But for the German economy, Europe’s biggest exporter, the weak dollar is a tragedy.
German automaker BMW already decided to assemble the X3 sport utility vehicle in the United States in the future, and now Mercedes-Benz just announced that it would move the production of the popular C-Class to Tuscaloosa, Alabama. Employees at the Mercedes-Benz plant in Sindelfingen, Germany were shocked and outraged about the news to outsource production to the United States. With a Euro-Dollar exchange rate of $1.50 that could possibly rise - and stay - to $1.70, manufacturing in Germany is not affordable for most companies and outsourcing is on the rise. Steelmaker ThyssenKrupp, located in Germany’s traditional industrial area, the Ruhr valley, will move production to Brazil and the U.S.
What hurts the european economy, helps the United States. Michael Burda, professor of economics at the Humboldt University Berlin, says in Der Spiegel, “a cheap dollar helps the Americans return to exporting more and importing less, which in turn helps them remain solvent”. For Americans, unsless they are planning a well deserved vacation to Italy, the ever rising Euro is a blessing.
by Garrett Spangler on December 4, 2009
Britney Spears still has the opportunity to get her estate plan together (if she hasn’t already), but many celebrities have failed to put together a proper plan and cost their friends and family both money and grief. You can put it off for countless tomorrows but here are a few lessons that can be learned from celebrities whose families had to find out the hard way how important it is to do a little estate planning.
Lesson 1: Write a Will and Estate Plan
Jimi Hendrix died without writing a will and under state law everything went directly to his father. His father managed to maintain the rights to the music and turn Jimi’s catalog into a small fortune estimated around $80 million before writing his own will and cutting out all of Jimi’s other family members in favor of an adopted daughter from a subsequent marriage. Jimi may have spent his last several years living in a purple haze but even that is no reason to skip writing an estate plan.
Lesson 2: Get a Professional to Help Write Your Plan
Warren Burger, former Chief Justice of the U.S. Supreme Court, wrote his own will and the brevity of the 176 words he penned cost his family nearly half a million dollars in estate taxes and lots of legal fees to obtain the rights to sell his real estate holdings on an estate valued at just $1.8 million. The cost of an estates professional is well worth it no matter the size of your estate. Plus, you can take a tax deduction for any fees paid to a professional for tax planning advice so its a win-win.
Lesson 3: Update Your Plan for Life Changing Events
Heath Ledger died with a will. Trouble is, the will was written well before he was in a long-term relationship with Michelle Williams and the birth of their daughter. Everything went to his father and sister at his death and many close to the family questioned whether they would provide for Michelle and their daughter as Heath would have had he updated his estate plan after his child’s birth.
Lesson 4: Put Your Wishes in Writing
Marlon Brando’s long term gal pal Angela Borlaza claimed that he promised her that she could keep the home he bought for her to live in as well as a long-term job with one of his companies after he passed. Problem was, he only made an oral commitment to her and she had to pay his estate an agreed upon settlement to keep her home and it is unclear what she may have received in exchange for not being kept on one of his company’s payrolls.
Lesson 5: Create Proper Codicils for Changes
Ted Williams may be paying an eternal price for conflicts in his burial wishes. His will stated he wished to have his body cremated while two kids from his second marriage produced a greasy, handwritten note that said something about putting his body in biostasis. His eldest daughter sought to have the wishes expressed in his will carried out but couldn’t afford the ongoing legal costs of the will contest and Ted remains cryogenically frozen.
by Madeline Martin on December 1, 2009
by Madeline Martin on December 1, 2009
Congratulations to St. Francis Inn Soup Kitchen, winners of the November Charity Begins at Erb Law poll.
A donation will be made to St. Francis Inn in support of all the good work they do.
Thanks for voting - be sure to check out the poll for December!
by Erica Intzekostas on November 30, 2009
In an earlier blog I reported on how the USPTO granted federal trademark registration to Man & Machine for the brand name Mighty Mouse. I noted that Apple will basically have two choices: seek a license from Man & Machine or come up with a new brand name. Well, it seems that they have opted for the latter, rebranding their popular mouse as Magic Mouse. I learned about this, of course, when I went to purchase my new Apple computer on Black Friday and was asked if I wanted to include a Magic Mouse with my purchase. I declined.
by Erica Intzekostas on November 24, 2009
The month of December is considered the “holiday season” because of so many holidays of various religions falling during December. Offices often use this opportunity to throw an annual office party in an effort to gather all of its employees together for a fun and festive occasion. A common feature at these parties is alcohol. It is served to increase the festive mood and “loosen up” stressed-out employees after a year’s worth of hard work. Unfortunately, when it comes to employer liability, alcohol is like a loaded gun.
If one of your employees is drunk, you could be held liable for any injuries that employee causes to himself or others. An extreme example, but one that, unfortunately, does happen, is if one of your employees drinks at your holiday party, drives home, and kills himself or someone else in a drunk driving accident. There is a possibility that your company could be held liable for that person’s death. Even if your company is located in a state that does not impose liability on employers serving alcohol to adults (so-called “social host” liability), your company could still be held liable for third party injuries on the theory that the employees are acting within the scope of their employment.
There are steps you can take to prevent this kind of tragedy and minimize your company’s liability. The obvious one is not to serve any alcohol. However, if you do decide to serve alcohol, there are measures you can take to decrease the risks. Some suggestions are outlined below.
- Have someone in a supervisory position be in change of serving alcohol, rather than allowing employees to self-serve. Better yet, hire a professional bartender.
- Instruct those serving alcohol to refuse to serve anyone who is visibly intoxicated.
- Limit the number of drinks each person can have by giving each person two drink tickets. Write employees’ names on their tickets to prevent ticket-swapping.
- Limit the amount of time alcohol is served (e.g. have a cocktail hour before dinner and then do not offer any more alcohol once dinner is served).
- Check personnel records to ensure that no one under 21 is permitted to drink. (This is particularly important from a liability standpoint as most states, including Pennsylvania, do impose liability on “social hosts” who serve alcohol to those under the legal drinking age.)
- Arrange transportation to take employees home, either with designated drivers, hired car services, taxis, or even a van.
- Hold the party on a Sunday afternoon or during lunch (times when people are less likely to overindulge in alcohol).
- Make the party a family affair by including spouses and children.
- Be sure to have plenty of non-alcoholic beverages and food available.
- Lead by example. Instruct supervisors and all members of upper management to set the tone by either not drinking or drinking in moderation. Ideally, there should be at least a couple of designated non-drinkers to keep an eye on things.
- Send a memo to all employees in advance of the party warning them not to drink too much and advising them of the measures the company is taking to ensure everyone’s safety, such as providing for free transportation home. Remind them that while the party is a time to have fun, it is still important to maintain a level of professionalism and the company will not look kindly upon anyone who drinks too much. You may also want to consider having employees sign a release form.
- Check your company’s general liability policies to determine what, if any, kind of coverage you have for this kind of event. Many policies specifically exclude coverage for events where alcohol is served. If your policies do not cover your holiday party, you may want to consider a “special events” or “dram shop” policy to cover the event.
by Elisa Jaehner on November 24, 2009
A little fun doesn’t hurt. And expressing through posts and pictures on facebook that you are having fun shouldn’t hurt either. But if you are claiming to be depressed and getting leave benefits from your employer’s insurer, you should probably consider not posting pictures from your last bar tour, strip club visit or vacation fun.
A canadian woman, who is on leave from her job at IBM in Quebec posted pictures of herself at a Chippendales show and on vacation. And IBM’s insurance company Manulife claims she was definitely having fun in these pictures. Manulife stopped the payment of benefits without notice after seeing the photos and concluded that these pictures showed that the woman was apparently no longer depressed.
According to ABCnews.com the woman, Nathalie Blanchard, wants to take legal action against Manulife, arguing that it was her doctor’s advise to go out with friends and family, and to have fun.
