DALLAS–(BUSINESS WIRE)–Dallas-based law firm Kennedy Law, P.C. announced that it won a final judgment for $6.5 million for Commerce Street Capital against First United Bank & Trust Company and Durant Bank Corp. for breaching an investment banking agreement. The final judgment, entered by Judge Martin J. Hoffman on February 22, 2019, follows a unanimous jury …
MalwareHunterTeam announced yesterday that a new ransomware hack is circulating that not only encrypts your files, but also tries to steal your PayPal credentials with an included phishing page. Once the victim’s data is locked, the victim is provided the option to pay the ransom with Bitcoin or PayPal. Because a far larger number of potential victims …
On July 20, 2017, I posted a blog entitled Hate Speech Online. That blog recounted the disastrous consequences that one potential client endured after posting a hateful statement on Twitter. A third party that the potential client did not know re-posted the tweet for the purpose of vilifying the man and then sent a screenshot …
There are a number of different situations in which you, the employer, may find it necessary to sign a non-disclosure agreement (NDA) with your employees. You want to develop trust with your employees, but you also want to be sure your business information is protected. At Kennedy Law, P.C., our NDA lawyers take great pride …
Plant patents, utility patents and design patents are among the three common types of patents. Having a patent will allow you to protect any new discoveries and inventions that you may create. With each patent comes its very own requirements for admissibility. A single patent extends protection to inventions and related discoveries made. Though each …
U.S. Copyright Law falls under Intellectual Property Law. It protects a wide range of original work in fields such as: literature, music, and art including diverse forms of expression such as dramatic works, pantomimes, choreographic works, artwork, videos, and audio recordings . As such, the complexities of copyright law affect numbers times of business and …
As a business owner, it is exciting to have a business that is making progress and becoming well-known. While you continue your operations, it is a good idea to consider trademarking your business name. There are many benefits to obtaining a trademark and doing so will ensure that your business name stays unique to your …
For the patriotic patent lawyer, inventor and/or fireworks enthusiast, today’s blog describes a few patents and patent applications claiming improvements to various types of fireworks displays. Enjoy, and have a happy (and safe) July 4th celebration. US Patent Number 7096790 entitled “Combined fireworks shipping container and display stand.” This patent is described as “A fireworks …
My Legal Practice Four of the largest cell giants in the US are selling your real-time location data to a prison technology company ironically named “Securus.” If you don’t feel so secure, join the club. The data has been used by security guards to monitor people, including judges, without a warrant, according the New York …
Managing Partner Stephen A. Kennedy’s article entitled “Ethics: Ethical Responsibilities to Prevent Data Breaches” has been published in this month’s edition of the Dallas Bar Association’s Headnotes. The article examines Rule 1.05(b) of the Texas Disciplinary Rules of Professional Conduct and the somewhat conflicting views of Ethics Opinions 572 & 608 and their impact your …
Many businesses are moving, or have moved, their data to one of the various cloud servicing companies, like the Google Cloud Platform, Amazon Web Services, Apple iCloud, and Microsoft Cloud. Depending on which cloud service provider you use, your data could be segmented and stored on a number of different servers in the United States, …
I just got off the phone with a potential client who lost his job because of a hateful comment he made to someone on Twitter. Realizing it was a bad decision to make the comment, he tried to delete it a few hours later. But to his horrible surprise, his comment had been forwarded to …
My father had an 8th grade education. He had to quit school when his dad, my grandfather, went to fight in WW II. Nevertheless, the man who I grew up with was an avid reader who owned his own small business called “Kennedy Lab.” He read the Wall Street Journal, the New York Times …
The Supreme Court ruled in a unanimous decision this morning that the disparagement clause of the Lanham Act is an unconstitutional violation of the free speech clause of the First Amendment. Justice Neil Gorsuch did not participate in the 8-0 decision, as he joined the Court after oral arguments were heard in this matter. The …
Trade dress generally refers to product packaging or the overall general appearance and image of a product. Trade dress can be quite broad and has been used to protect product packaging, websites, buildings, and restaurant interior and exterior design, among others. In fact, the seminal case regarding trade dress, Two Pesos, Inc. v. Taco Cabana, …
Most Dallas business lawyers recognize that Texas law does not impose fiduciary duties on the members of a limited liability company. The LLC members are free to impose fiduciary duties upon themselves in an operating agreement, but members take comfort knowing that the state does not require these high and uncompromising duties on them. Except …
A man in a coffee shop overhears a group of people discussing their new business venture, including the name of their new company. He quickly registers their domain using his smartphone or laptop on the coffee shop Wi-Fi. True story. Don’t believe me? Check out this man’s twitter feed: The purpose of a …
One of the benefits of a limited liability company is that a member’s interest is subject to statutory transfer restrictions, one of which is that a judgment creditor of a member cannot recover the judgment debtor member’s interest. Instead, a judgment creditor must seek a charging order, which provides the creditor with the right …
When a debtor files a chapter 11 bankruptcy, the debtor–and other parties in litigation with the debtor–obtain a broad right to remove cases from the state court to the bankruptcy court. The bankruptcy removal statute, 28 U.S.C. § 1452, allows any party to remove any claim or cause of action in a civil action, so …
Recently, I received an email from a client with a suspicious link. Being a cautious litigator, I investigated the email before clicking the link. After speaking with my client, I learned that his email had been hacked. Phishing links, hacking, and identify theft are all on the rise. The federal Computer Fraud and Abuse Act prohibits, …
Famed rock band The Eagles are suing a hotel located in Todos Santos, Mexico. If you guessed that the hotel was named Hotel California, which is also the name of the famous Eagles’ ballad, you would be partially correct. The hotel’s current owners purchased the Todos Santos Hotel, which originally opened under the name Hotel …
A Texas appeals court just took the first crack at interpreting an ambiguously troubling aspect of the Defamation Mitigation Act in Hardy v. Communication Workers of Am. Local 6215 AFL-CIO, et al., 05-16-00829-CV, 2017 WL 1192800 (Tex. App.—Dallas Mar. 31, 2017, __________) The legislature crafted the Defamation Mitigation Act in 2013. Tex. Civ. Prac. & Rem. …
The majority of us easily recognize famous word and/or logo marks that we routinely encounter. For example, the average American would instantly associate the golden arches with McDonalds or know that “Melts in your mouth not in your hand” corresponds with M&Ms, owned by Mars, Inc. If you saw the famous Nike swoosh, you would …
Just about every piece of new technology incorporates intellectual property from patents to trademarks to copyrights. A cell phone has somewhere between 100 to 1,000 patents covering everything from the screen to the battery. I recently purchased conduit for an electric cable that has three patents identified along the side. My television Quick Start Guide …
Generally under Texas law, when you sue on a note and recover a judgment, you are limited to your remedies in the judgment under the “merger” doctrine, in which the note merges into the judgment. The merger doctrine is an application of res judicata, which stops parties from litigating causes of action that have already been …
In a 7-1 decision, the United States Supreme Court has held that laches cannot be invoked as a defense against a claim for patent infringement damages within § 286’s six year statute of limitations period in SCA Hygiene Products v. First Quality Baby Products. Laches is an equitable defense which may bar certain claims if …
It was 141 years ago today, March 7, 1876, that Alexander Graham Bell received U.S. Letters Patent No, 174,465 covering his latest invention – the telephone. The original patent application was filed just three weeks earlier on February 14, 1876. In fact, Bell’s patent application was filed a mere two hours before Elisha Gray filed …
On February 15, 2017, the Federal Circuit affirmed a default-type death penalty sanction against a party found to have intentionally destroyed evidence in an investigation of patent infringement by the International Trade Commission. The case is Organik Kimya v. International Trade Commission, No. 2015-1774, 2015-1833. The case stemmed from multiple efforts by Organik Kimya and …
In honor of President’s Day, we’ve rounded up a few Presidential trademarks registered with the United States Patent and Trademark Office: PRESIDENT PUTZY PANTS- Children’s book, t-shirts, bumper stickers, and coffee mugs. PRESIDENT’S CUP-professional golf tournament and related apparel and gear. MAKE AMERICA GREAT AGAIN-registered by Donald Trump, political action campaign and related campaign gear. …
The United States Supreme Court heard oral arguments today in Lee v. Tam. We’ve previously covered the case extensively here on the blog. A copy of the transcript from the oral argument is available here. During argument, Justice Kagan characterized the disparagement provision and the case as a “fairly classic case of viewpoint discrimination.” …
Lara Croft, the CGI character in the popular Tomb Raider video game, unwittingly trained hackers how to steal your credit card data. This is the third blog in a series of four blogs I am writing about how hackers are stealing your money. Today we discuss how Video Game Logic has been applied to assist …
As promised in a previous blog, I am writing a series of articles covering how you can protect yourself from fraud over the holidays. Everyone has heard about cyber-theft, phishing emails, and data breaches, but you may not (yet) have heard about ATM skimmers, which are tiny hardware devices that fraudsters insert into ATM machines …
When you think of Thanksgiving, trademarks are likely not the first thing that comes to mind. However, the USPTO has issued a number of registrations for trademarks related to Thanksgiving. Here are a few of our favorites: GREENBERG SMOKED TURKEY, Registration No. 2,614,281 BUTTERBALL, Registration No. 4,983,891 MACY’S THANKSGIVING DAY PARADE, Registration …
A frequent question we receive here at Kennedy Law from potential copyright clients is what copyright damages are available for infringement. Under 17 U.S.C. § 504, a copyright infringer may be liable for statutory damages, actual damages, and profits. Statutory Damages 17 U.S.C. 412 establishes that statutory damages are only available in the United States …
When I walk into a car dealership to purchase a car, I would not think twice about a hacker somehow getting access to my information. Over a hundred car dealerships have leaked online your name, address, phone number, and social security number, all thanks to a centralized records system coupled with shoddy security. Welcome to …
The Fourth Circuit Court of Appeals has postponed oral argument in the Redskins disparagement trademark case (Pro-Football Inc. v Amanda Blackhorse, No. 15-874). All briefing on the issues had been completed and the case was set for oral argument on December 9, 2016. However, at the request of the Redskins, the Fourth Circuit has agreed …
A federal district judge has granted the University of Houston’s motion for a temporary injunction against the former South Texas College of Law. The University of Houston (“UH”) filed for the injunction after the South Texas College of Law (“STCL”) recently rebranded itself to the Houston College of Law. The district court found a substantial …
The United States Supreme Court has denied the Washington Redskins certiorari Petition. We have previously covered the trademark disparagement cases extensively here on the blog. The Washington Redskins are currently appealing a district judge’s order cancelling six of their trademarks on the basis that the marks were disparaging to Native Americans. The Redskins Petition noted …
As we predicted here on the blog last year, the Supreme Court has accepted certiorari this morning in Lee v. Tam. The Court will be reviewing whether the disparagement provision of the Lanham Act is facially invalid under the Free Speech Clause of the First Amendment. The USPTO argued in its Petition for cert that …
Imagine this scenario: You’re opening a coffee shop in your local town. You’ve spent countless hours and have invested a lot of money into the opening of your new shop. You’ve chosen a brand name and you’ve had that brand name plastered all over your brand new coffee mugs, your business cards, your napkins, your …
Managing Partner Stephen A. Kennedy’s article entitled “Ethics: Representing Multiple Parties During Settlement Negotiations” has been published in this month’s edition of the Dallas Bar Association’s Headnotes. The article examines Rule 1.06(b)(2) of the Texas Disciplinary Rules of Professional Conduct. To access a copy, contact the Dallas Bar Association.
In McRO, Inc., DBA Planet Blue v. Namco Games, et. al, the Federal Circuit Court of Appeals has reversed a trial court’s finding that a software patent claims an abstract idea and is invalid under the Supreme Court’s landmark decision in the Alice case. McRo involved patents that cover a method for synchronizing lip and …
Recently, Warner Bros. (“WB”) filed a DMCA Takedown Notice with Google. The takedown notice included numerous websites that WB sought to remove infringing content from. Normally, a Digital Millennium Copyright Act (“DMCA”) takedown Notice is used by a copyright owner for removal of infringing content from a website. However, WB’s takedown notices included takedown …
On August 9, 2016, the Federal Circuit Court of Appeals issued its opinion in Arendi S.A.R.L. v. Apple Inc., Appeal No. 15-2073 (Fed. Cir. 2016). In the case, the Federal Circuit holds: “Because the Board’s presumption that adding a search for phone numbers to Pandit would be ‘common sense’ was conclusory and unsupported by substantial …
The United States Patent and Trademark Office has rejected Whole Foods’ application for the trademark WORLD’S HEALTHIEST GROCERY STORE. Whole Foods filed its initial application on June 23, 2016. In its application, Whole Foods disclaimed any exclusive right to the use of the term “grocery store.” In the Office Action refusing registration, the trademark examining …
The professional exemption to the federal overtime requirements (“Professional Exemption”) is frequently relied upon to categorize employees as exempt from overtime when an employee is functioning in what appears to be a highly skilled capacity. Employers relying on this exception to the Fair Labor Standards Act (“FLSA”) must follow specific practices and procedures to be …
We are proud to announce that our own Managing Partner Stephen Kennedy has contributed a chapter to the upcoming book titled “Recent Trends in Trademark Protection”. Below you can find Mr. Kennedy’s chapter from the book where he provides his valuable insights into recent trademark law decisions.
Introduction Under the Fair Labor Standards Act (“FLSA” or the “Act”), certain employees are exempt from the overtime requirements of the Act. The Act requires that an employee who works in excess of 40 hours during a seven-day workweek get time and one half for all hours worked over 40, unless the employee falls within …
This morning, the United States Supreme Court announced its decision in Kirtsaeng v. John Wiley & Sons, No. 15-375. We’ve previously covered the briefing in this case here on the blog. In a unanimous opinion authored by Justice Kagan, the Court held that district courts must place substantial weight on the objective reasonableness of a …
Fair use may be used as an affirmative defense against a claim of copyright infringement. Fair use allows usage of a limited amount of copyrighted material without permission from the owner of the work. Examples of fair use may include excerpts from a work for the purpose of criticism or commentary, parodies, and certain …
The Supreme Court has cleared the way for larger enhanced damages awards in patent infringement cases. In a unanimous decision released today, the Court found that the Federal Circuit’s test for determining whether to award enhanced damages is inconsistent with § 284 of the Patent Act. The decision was announced in the consolidated cases of …
1. New 2016 White Collar Overtime Rule The Fair Labor Standards Act (“FLSA” or the “Act”) mandates that all employees not “exempt” from overtime pay be paid overtime for all hours “actually worked” in excess of 40 hours in any single workweek at a rate of 1 ½ times the “regular rate” of pay. Failure …
Managing Partner Stephen Kennedy was recently interviewed by Lawyer Monthly on recent developments in patent law. Don’t miss Steve Kennedy’s latest insights found on pages 58-59 of this month’s edition: http://www.lawyer-monthly.com/magazine/LM73-16/
A ten person jury deliberating in the United States District Court in San Francisco has sided with Google in its six year copyright battle against Oracle Corp. Oracle sued Google for copyright infringement of its Java application program interfaces (“APIs”). Google raised a fair use defense and by special verdict the jury found that Google’s …
This is the first in a ten-part series designed to help employers avoid mistakes that may result in regulatory problems under the federal Fair Labor Standards Act. A. Overview of the 2016 Revisions: On May 18, 2016, the Department of Labor (“DOL”) announced updated rules to the Fair Labor Standards Act (“FLSA” or the “Act”) …
A Swedish court has denied famed French shoe designer Christian Louboutin’s bid to register as a protected brand in Sweden. The court found that instead of being recognized as a protected brand, the red soles of Louboutin’s shoes were a mere decorative feature of the shoe’s design. As a mere decorative feature, the court found …
A defendant sued in federal court believing venue should be in a different district or division has a remedy: Move to transfer venue under title 28 section 1404. Section 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district …
Basic Wage Record Obligations Under the Fair Labor Standards Act (“FLSA”), it is the employer’s duty to create and retain accurate records of hours worked each workday and each workweek for all employees who are not exempt from federal overtime requirements. This includes keeping timesheets or time clock records that accurately reflect the arrival and …
The Fifth Circuit Court of Appeals has adopted the United States Supreme Court’s standard announced in Octane Fitness, LLC v. Icon Health and Fitness, Inc., 13 S. Ct. 1749 (2014). Octane was a patent case that determined when fee awards may be available under the Patent Act’s “exceptional” case standard. In Octane, the Supreme Court …
The Washington Redskins have filed a petition for writ of certiorari, asking the Supreme Court to hear their trademark case along with a review of In re Tam. We’ve previously covered In re Tam and the Redskins trademark cases here on the blog. If you need a refresher on the cases, read more here and here. …
Earlier this year, the Federal Circuit issued an opinion on claims construction that is of growing interest to IP litigators and patent prosecutors alike. According to the Federal Circuit, for a prosecution disclaimer to be found, the disavowing actions must be both clear and unmistakable. However, when the language is ambiguous, the Court must decline …
After registration of a federal trademark, the mark owner must meet several important maintenance deadlines. Failure to comply with required post-registration trademark maintenance filings will result in cancellation of the trademark. On January 27, 2015, the USPTO began sending courtesy e-mail reminders of upcoming post-registration trademark maintenance filings to those who had a valid email …
Supap Kirtsaeng will be returning to the Supreme Court this year. Kirtsaeng won a landmark victory in 2013 when the high court held that the first sale doctrine applies to lawfully made copies of works made abroad. Mr. Kirtsaeng purchased foreign editions of textbooks and resold them on eBay, receiving a revenue of roughly 1.2 …
A fanciful trademark is an invented word that serves no other purpose than to assist a consumer to identify and distinguish your goods or services. It may consist of a combination of letters and/or symbols. Examples of famous fanciful marks include EXXON, KODAK, and HAAGEN-DASZ. Fanciful marks are the strongest marks along the trademark spectrum. …
An arbitrary trademark generally consists of a word that has nothing to do with the services or goods with which it is associated. For example, the trademark “Apple” is a well-known arbitrary mark that will be familiar to most readers. Under the common understanding of the English word, an apple is typically understood to be a …
The Court of Appeals for the Federal Circuit has issued its ruling in In re Tam. In a surprising move and with a 9-3 vote, the panel ruled that the Lanham Act’s disparagement provisions are unconstitutional because they constitute an impermissible restriction on speech. By permitting the Government to unilaterally determine which marks were disparaging …
A. Basic Overtime Rate: The Fair Labor Standards Act (“FLSA”) mandates that all employees not “exempt” from overtime pay be paid overtime for all hours “actually worked” in excess of 40 in any single workweek at a rate of 1 ½ times the “regular rate” of pay. This rule applies to both salaried and hourly …
Up next in our discussion on the strength of your trademark are marks that fall under the “Suggestive” category of the spectrum. Suggestive marks differ from merely descriptive marks because they do more than just describe a characteristic or quality of the goods or services. A suggestive mark requires some leap of imagination or …
The Washington “REDSKINS” trademarks have been in litigation for over twenty years. In 1992, the dispute began when a group of Native Americans filed a petition to cancel the registration on the grounds that it disparaged Native Americans. Currently, the Lanham Act does not permit registration of mark that “may disparage” a group or individuals. …
If you knew the answer was “yes, if it’s still available,” then pat yourself on the back because technically, that is right. If you answered “yes, but it’s a bad idea” you get a gold star. Let’s talk more about that. It all started with the U.S. military…. Prior to 1998, regulating Internet names had …
In continuing our discussion of the trademark spectrum, we will be reviewing “Descriptive” marks on the blog today. Descriptive marks describe an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services. An example of a descriptive mark would be the mark AFTERTAN for lotion intended for use after tanning. AFTERTAN …
When clients come to me for trademark registration, they usually want to know how strong their proposed mark is. There is no formulaic approach for providing that evaluation, but practitioners may rely on the trademark sliding scale of distinctiveness, also known as the trademark spectrum. I use the model below to help illustrate this spectrum …
Patent litigation could be forever changed when the United States Supreme Court decides two related cases concerning the test for enhancing damages. The Supreme Court granted certiorari in two cases, Stryker Corp. v. Zimmer, U.S., No. 14-1520, and Halo Electronics, Inc. v. Pulse Electronics, Inc., U.S., No. 14-1513, on the sole issue of whether the …
My large corporate clients follow the “take no prisoners” strategy in protecting their trademarks while my small clients register each of their marks as soon as they are placed into commerce, if not before, using the “intent to use” option under the trademark statute. I once told a client, half-jokingly, that when it comes to protecting …
A trademark is a word, symbol, or design used as a source identifier for goods and services. Trademarks help to distinguish one good or service from another and to promote brand awareness among consumers. For example, most consumers would instantly recognize and be able to differentiate the Nike Swoosh logo from the three-stripe trefoil logo …
In March, 2015, Stephen A. Kennedy was again selected as a Super Lawyer by Thomson Reuters. Kennedy has been a Super Lawyer selection from 2011-2012 and 2014-2015. Kennedy has represented global multinational firms in intellectual property matters, recording artists, authors, as well as small business entities in their business litigation matters. “My entire practice can be summarized …
In February, 2015, Kennedy Law settled a case pending in the International Trade Commission involving a copyright for a literary work. The case was the first copyright action brought before the International Trade Commission since the 1983 Gremlins case, which ultimately resulted in the revision of the ITC’s domestic industry requirements. The case was originally …
In March, 2015, Kennedy Law attorneys settled eight patent infringement cases pending in the United States District Court for the Eastern District of Texas. The technology involves surveillance technology used by municipalities, commercial businesses and different branches of the Federal Government. Kennedy Law was lead counsel representing 3rd Eye Surveillance in the patent suits. The …
In March, 2015, Kennedy Law was retained to represent an Ad Hoc Committee in one of the largest bankruptcies in the State of Texas in recent years. The bankruptcy involves Life Partners Holdings, Inc., a publicly traded company that defrauded numerous investors in the business of purchasing life insurance policies for individuals projected to die …