by Erica Intzekostas on February 1, 2010
As the Saints prepare for their first ever Superbowl appearance, the battle is heating up over the phrase “Who Dat?” (short for “Who Dat Say Dey Gonna Beat Dem Saints?”, a common chant at Saints games since the 1980s).
The NFL is claiming that it owns exclusive trademark rights to the phrase used in association with the Saints football team (e.g. in conjunction with the Saints’ emblem, the fleur-de-lis) and recently started sending out cease and desist letters to local shops selling “Who Dat?” merchandise the NFL believes to be in violation of its trademark rights. Many of these shop owners, however, say they are confused about who, if anyone, owns exclusive rights to “Who Dat?”, especially with some Louisiana politicians releasing statements that the phrase is in the public domain and urging the NFL to drop its pursuit of its claims.
Two long-time Saints fans, brothers Sal and Steve Monistere, are also claiming exclusive rights to “Who Dat?” through their corporation, Who Dat, Inc. In an appearance today on MSNBC, Steve Monistere claimed that the “I’m a Who Dat Fan” logo was trademarked in 1983 after it was made famous through the Aaron Neville song.
After watching the segment on MSNBC, I did a little research of the USPTO records and I was not able to find any evidence of the “I’m a Who Dat Fan” logo. I did, however, find several trademark applications filed by Who Dat, Inc. in connection with the Who Dat? phrase, including “Who Dat? Blues Band” in connection with live music performances, filed in 2002 and still active today, and one for “Who Dat” clothing that was applied for in 1993 but abandoned in 1995 for failure to file a statement of use. Accordingly, there is nothing presently on file with the USPTO that gives Who Dat, Inc. exclusive rights to the phrase in connection with T-shirts and other clothing merchandise. This does not, however, mean that the company does not have such exclusive rights. As long as they can prove that they were using it first, then their rights would be superior to anyone else’s. In fact, Who Dat, Inc. recently filed a trademark application on January 7, 2010 for use of Who Dat? on T-shirts and other clothing, claiming a date of first use of October 14, 1983. It will still be up to the USPTO to determine whether the phrase should be granted registration, and the NFL will still have an opportunity to oppose registration.
Mr. Monistere also claims to have documentation from the New Orleans Saints whereby the Saints acknowledge Who Dat, Inc’s trademark ownership and promise to never oppose it. Additionally, Mr. Monistere claims that since 2005 his company has been producing T-shits that contain both the Who Dat phrase and the fleur-de-lis on it without opposition from the Saints. However, even if all that is true, the Saints and the NFL are two different organizations, and it is the NFL, not the Saints, that has been sending out the cease and desist letters. That said, if the company has been producing the T-shirts since 2005 with the NFL’s knowledge and the NFL has not until now opposed it, Who Dat, Inc. could use the NFL’s lack of opposition over the past four years to its advantage.
by Garrett Spangler on January 29, 2010
It’s cold here in Philadelphia on this last Friday in January, and some spouses may feel they’ve been left out in the cold if the federal estate tax is not reenacted and applied retroactively in 2010. The way that most good estate planners have written wills for wealthy clients subject to the federal estate tax has the potential to leave the surviving spouse with nothing from the decedent’s estate.
Estate plans have generally been written with the expectation that the estate tax is a fact of life and may see modest changes to the value of estates subject to the tax, but not be repealed altogether. Most estate planning documents for wealthy individuals pass the portion of an estate which is eligible to pass tax-free into a trust for their children in order to take full advantage of the tax laws. The tax exemption was $3.5 million in 2009 but increased at different increments over the last 10 years and therefore estates attorneys used a formulaic approach to determine how much of a decedent’s estate would go into a trust and how much would be left directly to a spouse. This was great because it allowed the estate planning documents to be flexible and provide the greatest tax benefits to a client without requiring additional changes to the documents.
With the estate tax repealed, these once beneficial formulae will pass the entire estate of the decedent into the trust for the children because it all passes free of tax. If this occurs, the surviving spouse will actually receive little or nothing from the estate, despite the decedent’s original intent to provide for his or her spouse.
There are options for a spouse faced with this situation, including an opportunity most states provide to a surviving spouse allowing them to elect against the contents of a will and take a statutorily provided portion of the estate, but doing so can be a time consuming and expensive proposition. Of course, it is also likely that the laws will be reenacted retroactively and additional planning will eventually prove unnecessary.
My advice? Talk to your planning professional if you have a large estate and a plan in place to help reduce your estate taxes. (And if you have a large estate and don’t have a plan in place, go get one!) Some modest changes to your current plan can assure that all of your loved ones are properly taken care of in the event no changes are made by Congress this year.
by Erica Intzekostas on January 27, 2010
Apple is angling to obtain exclusive rights to the brand name iPad for handheld wireless computer devices. The stumbling block for Apple is the fact that Fujitsu currently has a trademark application for the name that has been given preliminary approval by the United States Patent and Trademark Office. While that would normally make it extremely difficult for Apple, Apple is planning on opposing Fujitsu’s application, presumably on the basis that Fujitsu is not using the mark in commerce. In fact, at one point back in April of last year the Trademark Office deemed the application abandoned for Fujitsu’s failure to respond to the Trademark Office’s requests, until Fujitsu resumed its pursuit of the name a couple months later. Apple has filed a request with the Trademark Office to allow Apple more time to file an opposition. Apple currently has until February 28th to file its opposition. In general, a trademark owner can only maintain exclusive rights to a brand name for as long as it is using the brand name in commerce; a trademark owner cannot simply claim rights to a name that it does not use just to prevent anyone else from using it. Therefore, if Apple can demonstrate that Fujitsu does not use brand name, it may very well win this trademark battle.
by Garrett Spangler on January 22, 2010
A ruling handed down by a U.S. Court of Appeals on Tuesday made it official, USC is not permitted to use the letters USC on their athletic uniforms and apparal. Only USC is permitted to use USC for those purposes.
Confused yet?
I had to do a double take when I saw the news but apparently the University of Southern California trademarked the use of the letters “USC” to represent their school. Following the Court’s decision, the University of South Carolina finds itself in a quandary as to how to represent their own university in short form and whether to press on with the case, appealing their petition to use USC on the school’s baseball team clothing to the Supreme Court.
Fair or not, it appears that trademark law has accomplished exactly what it set out to accomplish; stop subsequent individuals or entities from using a confusingly similar mark to one which is already registered and used in commerce.
And unlike Porky Pig, that’s not all folks! Apparently just winning the right to continue use of the USC letters exclusively was not enough, representatives of the school had to hit the University of South Carolina while they were down. The attorney representing the University of Southern California in the case, Scott Edelman, stated the letters were more deservedly linked to the Trojans’ warrior image than to “a goofy little chicken.”
Ouch!
by Chris Erb on January 20, 2010
As I lawyer, I often write privacy policies for customers, and I certainly recommend them whenever clients are collecting information. Most of the time these policies are for website where - not surprisingly - information must be collected in order to provide a service. For example, my internet hosting client can’t provide hosting without a name, contact information, and a credit card. Another client can’t take orders for product without much the same information.
That said, the increasing collection of data under the guise of providing “the service(s) or carry out the transaction(s) you have requested or authorized,” is quite disconcerting. Now, perhaps you’re thinking that I cribbed that statement from an online service such as Amazon or some sophisticated cloud application, but I didn’t. Nope, that’s from the “Open XML File Format Converter for Mac Privacy Statement,” and is for a small Microsoft utility which enables those of us who are too cheap to upgrade their old version of Word to open newer Word files.
Now, the “service(s)” I’ve requested are pretty limited, in that I just want to open files in Word, a package I bought (sorry, licensed) some time ago. That’s it - I’m opening a file, resident on my computer, using software which is also resident on my computer. I can’t think of any information they need to collect which they don’t already have, and certainly nothing which I have authorized.
More importantly, I find it disturbing that they are collecting any information at all, particularly as an attorney with confidentiality obligations. Information collected is also information which can be subpoenaed, revealed by mistake, or read by some wayward employee looking to make a fast buck.
My words of wisdom? As an online or offline business, if you don’t need information, don’t collect it, and if you think you do, then think again in case you don’t. And as a consumer, if you don’t like a vendor collecting information about you, switch vendors.
by Garrett Spangler on January 19, 2010
With estimates of just one month to live, actor Dennis Hopper has filed for divorce from his wife of 14 years, Victoria. Why, you might ask? Apparently it’s all about the Benjamins.
The 73 year old actor filed for divorce last week, despite a 17 year relationship with his 5th and current wife, while he spends his final days in the hospital, eased by copious pain medications. Unfortunately for the family, it may be the same medications that are helping Dennis ride out his end of days that are adding to the tumultuous period his family is going through. Or are they?
Conflicting reports suggest very different versions of the situation in which Dennis finds himself. According to a family friend who spoke with the Huffington Post, Dennis may be mentally incapacitated due to his medication. This suggests that Dennis may not be of sound mind to make such life altering decisions and thus capacity could enter any decision made as to whether to grant Dennis with his dying wish, divorce.
Other reports suggest that Victoria has become increasingly hostile with the actor over the last few years as she requested Dennis change his will and destroy the couple’s pre-nuptial agreement so she can get more of his estate than initially agreed. This suggests it is not an issue of capacity and just a matter of Dennis seeing Victoria’s true colors, caring more about the actor’s finances than the man himself.
Exactly how the cookie crumbles when all is said and done remains to be seen but all is fair in love and war I guess, and it may be just getting started as the actor lives through his end of days.
Assuming Dennis’ pre-nuptial agreement is well written, at least he will know that no matter what happens with the pending divorce, the woman with whom his relationship crumbled over the last year or two will be limited to the original agreement between the couple. If so, it will be another example of how proper planning can help you after you are no longer able to help yourself.
by Madeline Martin on January 15, 2010
by Erica Intzekostas on January 13, 2010
Everyone knows that people tend to be more careless in e-mails than they would normally be in a formal written letter. This applies to personal e-mails as well as business e-mails. No matter how many times we hear cautions about what we say in e-mails, people are going to continue to be more lax than they should be in e-mails.
On the flip side, e-mails can be an easy and efficient way for businesses to communicate and for deals to be negotiated and made. It is important, therefore, to not only be careful about what you say in an e-mail, but also for your company to have an effective document and data retention system in place so that important e-mails are properly stored for easy retrieval. Merely assuming that a computer’s hard drive or the office’s back-up system will save e-mails is generally not sufficient.
Every business that uses e-mails as a means of communicating with customers, vendors, or business partners, or even just internally, should have a document and data retention system in place that includes safe and permanent storage of important e-mails. In general, your company’s document retention system should be tailored to meet the specific needs of your company. It should take into consideration all applicable legal requirements, such as laws relating to payroll and employee records. Depending on the industry, there may be more specific regulations that dictate what records your company can and cannot destroy. We at The Erb Law Firm can assist your company in crafting an effective document retention system.
by Garrett Spangler on January 12, 2010
Its officially 2010. In the estate planning world that means we have crossed over into the dark side, entered the wild west, and journeyed to the next frontier. That’s right, no action was taken on capital hill and that means the estate tax, or death tax as it has affectionately become known, for 2010 is repealed.
What does this really mean? Well before you start doing backflips or praying for your rich, 99 year old great Uncle Carl to hurry up and die already, let’s take a quick look at where this actually leaves us:
No estate tax in 2010?
Hardly! All indications from congress point toward enactment of a new estate tax regime over the early part of the year which will be made retroactive to cover all estates dating back to the first of the year.
Capital gains trap?
If no action is taken by congress the tax holiday may be more like a trip to the dentist than to Disney World. There will actually be tax due on many estates that otherwise would have been exempt under the previous $3.5 million minimum for the federal estate tax. This is because the repeal includes the provision providing a step-up in basis on the assets passed to a decedent’s heirs. What this really means is that when a beneficiary inherits grandma’s stock or property, the beneficiary will have to pay tax on the difference between what grandma bought it for and the value when it is sold. (And good luck figuring that out in some situations where decades of splits, mergers, and dividends have clouded the cost basis picture.)
Just give it to the grandchildren?
Not so fast. Repeal of the estate tax does repeal the generation-skipping tax (GST), which would allow those who may die this year to pass all of their assets to their grandchildren without penalty. This would avoid any tax being assessed on the assets when their children eventually pass them on again at their death. Sounds good but if you plan this way and the tax is reinstated retroactively, these assets will be hit with the 55% (or newly revised similar rate) generation skipping tax. Thats a hefty price to pay for a gamble if it doesn’t pay off, especially since all signs suggest the odds are against it.
What should you do?
Unfortunately it appears that the best strategy right now may be to hurry up and wait. Too much planning right now to try to take advantage of what may simply be an illusion of a tax holiday could result in some serious adverse consequences. There will be plenty to do once the dust settles and we have a clearer picture of what the future holds.
by Chris Erb on January 8, 2010
I just received one of those e-mails in which the signature is longer than the actual message (by quite a bit). The signature in question included the following line:
If you are not the intended recipient, you
are hereby notified that any disclosure, copying, distribution, or
use of the information contained herein (including any reliance
thereon) is STRICTLY PROHIBITED.
These signatures are a pet peeve of mine. While the sender may hope that a couple of words in all caps will scare people into submission, there’s very little in the way of legal action which could be taken in the event I were to do any or all of those things. Quite simply, by sharing their wisdom with me outside of some contractual limitation on my behavior as the recipient (such as a confidentiality agreement between me and the sender) they ceded a significant meassure of control over the distribution of that wisdom. Absent any other restriction, the only real limitation on distribution would be copyright law, which may or may not help depending on the nature of the use. To my way of thinking, they’d be better off politely asking the recipient not to do those things and hope for the best. In my case, the mere attempt to “prohibit” makes me want to distribute the e-mail (or at least write a blog entry berating them for having a silly signature).
Of course, in this particular instance there’s another problem. Even if this were enforceable as written, I could, as a presumably “intended” recipient, apparently broadcast the e-mail to the world without arousing the ire of JP Morgan Chase (oops!) or its legal team. Fortunately for them, it’s not really interesting enough to share.
