Alice + Olivia Betsey Johnson Continue Face-off

The brand is suing the Betsey Johnson company for copying its trademarked “StateFace”

Stacey Bendet’s dark hair, round glasses and red lipstick are well-known among fashionistas. The designer, chief executive officer of Alice + Olivia, has plastered the trademarked image on clothing, handbags and wallets throughout her brand. Now a similar image can be seen on Betsey Johnson bags. And Bendet isn’t happy about it.

Alice + Olivia, also known as A+O, filed a lawsuit earlier this month in a New York district court against the Betsey Johnson company, which was acquired by Steve Madden in 2010, for copyright and trademark infringement.

A+O alleges Betsey Johnson uses Bendet’s face, the “StaceFace,” on its bags.

Staceypants, the company owned by Bendet, “has exclusively licensed, assigned and granted all rights and exclusive permission to A+O to use the StaceFace Designs, imagery and all associated copyrights and trademarks and variations on the imagery,” the complaint reads.

The company first learned that one of Betsey’s bags was using “a design which is virtually identical to the StaceFace Designs,” as early as February 2017, and asked the Steve Madden company to stop manufacturing and selling goods with the StaceFace image on it. According to court documents, the Betsey Johnson company originally agreed to do just that.

“Unfortunately, A+O’s good faith intentions and efforts to resolve its disputes with defendants appear to have been in vain,” the court documents state. “Defendants have continued their efforts to copy and ‘knock-off’ the StaceFace Designs.”

“The blatant replication compelled the conclusion that defendants intentionally copied the StaceFace Designs to foster confusion and to deceive customers into believing that the customers were purchasing products originating with A+O,” the document continues.

Then in September of this year, representatives at A+O said they found additional Betsey Johnson goods that have the StaceFace on them. The only difference is that this time the round glasses have been changed to resemble hearts.

The heart-shaped glasses may be an attempt to avoid liability, said Susan Scafidi, a fashion attorney and founder of the Fashion Law Institute at Fordham University in New York.

A+O argued in the complaint that the Betsey Johnson bags confuse customers and may lead them to believe that there is some kind of collaboration between the two brands. According to court documents, reps at Steve Madden and Betsey Johnson reassured A+O that it had in fact stopped manufacturing and selling goods with the StaceFace on them.

“The bag photographed must be part of stock remainders that have made their way through the retail channels,” an email from Steve Madden to A+O, included in the court filing, read.

Now A+O is seeking a jury trial to solve the issue. Representatives for Steve Madden did not respond to a request for comment.

Original story published under Women’s Wear Daily (December 11, 2018) and written by Kellie Ell

German company alleges Taste Nirvana misrepresented coconut water

LOS ANGELES (Legal Newsline) – A German company and individual allege that a Corona, California company falsely represented its coconut water products and that the plaintiffs had to issue a recall of the products in Germany.

Patricia Bloch and Farmkind GmbH filed a complaint on Oct. 1 in the U.S. District Court for the Central District of California against P.S.W. Inc., Taste Nirvana International Inc., Surachai “Jack” Wattanaporn and Does 1-10 alleging fraud in the inducement and other counts.

According to the complaint, beginning in 2013, plaintiffs distributed Taste Nirvana’s coconut water products throughout Germany. The plaintiffs allege the defendants advertised the products to be “100 percent pure, contain no added sugar, no added water, and no undisclosed additives.” 

The suit states in 2018, a competitor of Farmkind“confronted” the plaintiffs with “certified lab results showing Taste Nirvana Products were not 100 percent pure with no added water or sugar as they claim to be. In fact, the test results showed that Taste Nirvana Products contained more than 50 percent added water and 70 percent added sugar.” The plaintiffs allege independent tests from two separate labs also confirmed added water and non-fruit sugar.

Farmkind alleges it had to initiate a recall of all Taste Nirvana products and that “costs of the recall were substantial as Farmkind was forced to reimburse its customers, pay freight and shipping costs, and expand warehouse space to store the recalled products,” the suit states.

The plaintiff holds P.S.W. Inc., Taste Nirvana International Inc., Wattanaporn and Does 1-10 responsible because the defendants allegedly made false representations regarding the Taste Nirvana products.

The plaintiffs request a trial by jury and seek restitution, disgorgement, refund, and/or other monetary damages, punitive damages, pre- and post-judgment interest, and such other and further relief as the court deems just and proper. They are represented by Leslie G. Williams, Benjamin M. Cutchshaw and Tyler R. Train of Wilson Keadjian Browndorf LLP in Irvine, California.

U.S. District Court for the Central District of California case number 2:18-cv-08463-PLA

See original article here

https://legalnewsline.com/stories/511599020-german-company-alleges-taste-nirvana-misrepresented-coconut-water

Benjamin M. Cutchshaw Joins Wilson Keadjian Browndorf, LLP’s Irvine Office

IRVINE, CA (AUGUST 8, 2018) – Wilson Keadjian Browndorf, LLP (“WKB”) is pleased to announce that Benjamin Cutchshaw has joined the firm as a partner in its Commercial Litigation Practice Group and will be resident in the firm’s Irvine office.

Mr. Cutchshaw brings substantial litigation experience at both the trial and appellate levels. His practice focuses on complex commercial disputes, intellectual property matters, and financial services litigation. He also regularly advises clients regarding risk management and litigation avoidance, corporate governance, employment law, lender liability, and creditors’ rights.

“We’re thrilled to have Mr. Cutchshaw on board. His in-house background and extensive trial experience makes him a valuable addition to the firm,” said Michael Keadjian, Managing Partner of WKB. “Expanding our commercial litigation practice group is a strategic focus of the firm, and Mr. Cutchshaw has ideal skill sets that further deepen our bench strength.”

Prior to joining Wilson Keadjian Browndorf, Mr. Cutchshaw was with Paul Hastings LLP and a boutique litigation firm. He is a graduate of the University of Michigan Law School and Pepperdine’s Graziadio Business School.

About WKB

WKB is a full-service law firm, offering its clients the energy, efficiency, and creativity of a smaller more flexible firm, with the skills and experience of a larger firm. Our attorneys’ experience is as diverse as our client base and includes significant experience in traditional industries such as finance, project development, construction, intellectual property, media and real estate, as well as emerging areas such as automation, e-mobility, and life sciences. Our model allows us to provide the same type of professional results as the larger firms but at far more competitive rates.

Media Contact

Danny Kim
Chief Marketing Officer
dkim@plutossama.com

WAS DIEHR A FLOOK IN THE SYSTEM? A SYSTEMS ANALYSIS FOR TWO LANDMARK PATENT ELIGIBILITY SUPREME COURT DECISIONS

Abstract

As far back as the 1970s, the Supreme Court has wrestled with the issue of whether patents should be granted for computer software and mathematical algorithms.  The Supreme Court tailored the definition of patentable subject matter through three landmark decisions, which have colloquially become known as the “patent eligibility trilogy.”  While the Court’s intention may have been to add clarity to a broad statute, the patent eligibility trilogy has long been the source of confusion and frustration among practitioners. It has become common when discussing these decisions for authors to take a cursory look at the underlying technical aspects of the cases and advance straight into the legal aspects. Conversely, this article will give a brief history of the well-documented legal progression in order to go in-depth exploring the technology behind the two contrasting holdings in Flookand Diehr in the aims of furthering the discussion and understanding of the Court’s precedent.

For the full article, see:

Tyler Train, Was Diehr A Flook in the System? A Systems Analysis for Two Landmark Patent Eligibility Supreme Court Decisions, 44 Rutgers Computer & Tech. L.J. 192 (2018)

 

© 2018 Tyler Train

ttrain@wkbllp.com

Negligent Hiring, Retention & Supervision

In today’s hyper-litigious society, employers must perform reasonable investigations of new hires and remain attentive to conduct of tenured employees, to ensure that an employee does not present an unreasonable risk to others.

Types of Claims

Employers have faced claims for negligently hiring a new employee, negligently retaining a bad employee and/or negligently supervising a wayward employee.  A Negligent Hiring claim asserts that the employer did not exercise reasonable care when hiring the new employee, whose dangerous tendencies or incompetence for the job at issue, would have been evident from a reasonable pre-employment investigation of the new employee’s background.  Similarly, a Negligent Retention claim asserts that an employer retained an existing employee who was known by the employer to have dangerous tendencies or be incompetent for the job at issue (e.g., the employer knew from the employee’s work records, prior complaints, disciplinary reports or prior observed misconduct).  A Negligent Supervision claim involves the same elements as a Negligent Retention claim, but typically focuses on misconduct occurring on the employee’s property (e.g., in the store) or under other circumstances where the employer could have exercised direct control over the employee.  All three claims require a showing of injury proximately resulting from the employee’s acts.  See gen. Kwang Bok Yi v. Open Karaoke Corp., No. 2016-11486, 2018 WL 2224984, at *1 (App. Div. 2d Dept May 16, 2018)

These types of claims typically are asserted against an employer by third parties injured by an employee – such as customers or passers-by.  Worker’s Compensation rules generally preclude one employee from asserting such claims against their employer based on conduct by a fellow employee.  Worker’s compensation programs are usually an aggrieved employee’s only remedy against an employer unless the aggrieved employee can show that the employer deliberately sought to cause the injury complained of.  Ferris v. Delta Airlines, 277 F3d 128, 138 (2d Cir. 2001).

Employer’s also have a technical defense that would enable dismissal of a Negligent Hiring, Retention or Supervision claim if alleged injury occurred during the offending employee’s execution of his/her duties (e.g., a company truck driver with a history of driving infractions causes a car accident or a bar bouncer with a criminal assault record breaks a patron’s nose while forcibly removing the patron from the bar).  Where “an employee is acting within the scope of his or her employment … no claim may proceed against the employer for negligent hiring or retention.” Karoon v. New York City Tr. Auth., 241 A.D.2d 323, 324, 659 N.Y.S.2d 27 (1st Dept. 1997); Troy v. City of New York, 160 A.D.3d 410, 70 N.Y.S.3d 842 (2nd Dep’t 2018).  This, however, is of limited practical utility because the employer remains liable for the employee’s conduct under a theory of respondeat superior.  Lara-Grimaldi v. Cty. of Putnam, No. 17-CV-622 (KMK), 2018 WL 1626348, at *24 (S.D.N.Y. Mar. 29, 2018) (citing Karoon., 659 N.Y.S.2d at 29). “[I]f the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training.” Id.

Employer’s Prophylactic Measures
What constitutes reasonable investigation or oversight of an employee (whether pre-employment or continuing supervision) necessarily varies with the nature of the employee’s position.  It stands to reason that the potential for an employee to cause injury depends on the level of authority possessed by the employee, the risk associated with the employee’s position and the extent to which the employee will interact with the public.  The type and comprehensiveness of the investigation of the employee vary accordingly.  Of course, if an employee or potential employee is known to have been involved in an offending incident in the past, the level of scrutiny should increase.  Thus, senior/supervising employees or those with direct and regular public contact require more extensive background checks than laborers who work exclusively in back-office or warehouse roles.  Likewise, a driver who has never had a traffic ticket over the past 5 years, may require less continuing oversight than a similarly positioned driver with a recent road rage conviction.

The employer should take prompt and consistent action to investigate claims of employee misconduct and appropriately punish wrongdoers – including terminating employment if the offense so warrants.  Promptly and appropriate responses to employee bad behavior can help avoid or mitigate third party claims.

The employer should take care to accurately document its background investigation and oversight efforts.  In case litigation arises, it will be helpful to have records showing that the employer acted reasonably under the circumstances.  Conversely, an absence of records or materials showing that the employer ignored “red flags” can be very problematic at trial.

Of course, the employer must be discrete and judicious in the use of information it acquires when conducting an investigation or oversight of employees.  Federal, state and local law limit whether and how an employer may use an employee’s criminal conviction, arrest record, driving record, credit history, past bankruptcy or participation in other litigation.

For further information or assistance with any pending or potential matter, please contact Jonathan Faust, at Wilson Keadjian Browndorf LLP, 212.660.9555 or jfaust@wkbllp.com.

 

Website Accessibility

Businesses must proactively ensure that their commercial websites are easily accessed by people with visual, auditory, motor and/or cognitive impairments or brace for litigation throughout the United States.

A growing number of lawsuits claim that websites that are not reasonably accessed by the disabled violate the U.S. Americans with Disabilities Act (“ADA”).  See e.g., McDonald’s, Kmart, Others Settle Suits Over Website Access for the Blind, Chicago Tribune, Nov. 6, 2017 (describing four lawsuits brought by the same law firm on behalf of the same group of plaintiffs). Accessibility concerns have most commonly been raised regarding public facing websites by which users engage in transactions or receive goods and services.  However, accessibility concerns have also been cited respecting companies’ internal employee intranets and web pages advertising job offerings to the public.

The ubiquity of internet searches in everyday life means that the disabled often encounter frustrating websites.  In addition to those persons genuinely aggrieved by a difficult website experience, there are many recurring “career plaintiffs” (and a growing cottage industry of lawyers) who look to manufacture litigation in order to effectuate change and/or extract settlement payments.  Such plaintiffs quickly file cookie-cutter complaints, often targeting entire industry sectors.  While the current litigation has tended to target large, well-known retailers, business should expect these lawsuits to proliferate and reach small and mid-market companies.

Significantly, under current law, businesses can be sued for website accessibility violations without prior notice. In other words, a business might first find out about an ostensible accessibility concern with its website upon receiving a demand letter or even a formal legal complaint filed against it.  Reacting to an existing legal claim means that, in addition to the expense and distraction of litigation, accessibility issues get resolved with plaintiff’s counsel’s oversight, and on the plaintiff’s timeline.  The bad publicity associated with such litigation can also expose a business to secondary issues — such as generalized customer relations concerns and/or potential government enforcement actions.

Besides avoiding the many problems attendant to litigation, there are compelling business reasons for a company to promptly and proactively take steps to make its websites more accessible to the disabled.  Indeed, making it easier for more customers to find, engage and buy from the business is often its own reward.  Likewise, it is easier for a business to retain customers as they age if the company website is accommodating to those with diminished eyesight, hearing and motor skills.  Implementing enhanced website accessibility standards might also improve search engine optimization, making the company’s website higher profile during routine internet searches.  In addition, pre-emptively ensuring website accessibility can reinforce a business’ reputation as a good corporate citizen.

Business can take pre-emptive action by modifying their websites to add: (i) captions and transcriptions of multimedia content on the site for hearing impaired users; (ii) spoken descriptions of photos to assist the visually impaired; (iii) options to navigate online pages point-to-point using keyboard commands (not a mouse) to access different levels of headers and text for those with fine motor skills impairment; and (iv) features, such as “alt text” in the code that enable the website to work with mass-market screen readers. Addressing web accessibility proactively, and before any lawsuit arises, lets the business take charge — and means that website reconfiguration (and/or replacement with a site that is “accessible by design”) and attendant issues such as testing, training, and maintenance, can be appropriately budgeted, staffed and planned within the business and financial structures of the company, and not based on imperatives set by a court or plaintiff.

Currently, there is no single, formal web accessibility standard that has been formally endorsed legislatively or judicially.  However, the World Wide Web Consortium (“W3C”) sponsors the Web Accessibility Initiative (“WAI”), which provides a widely respected and generally accepted set of website accessibility guidelines, technical reports, educational materials and other documents that relate to different components of web accessibility.  Many private litigation settlement agreements provide that the offending website that is the subject of the dispute should be reconfigured to meet the WAI guidelines. Accordingly, website owners should consider proactively redesigning their sites to conform to WAI guidelines. The link to the W3C guidelines is: http://www.w3.org/standards/webdesign/accessibility.

Skilled counsel can assist you in evaluating your situation, controlling the cost of any website reconfiguration or lawsuit, and making tactical decisions on how to comply with web accessibility concerns.  Proactive attention to website accessibility should result in reduced litigation and compliance risk, lower long-term costs, and increased business from customers.  If you have questions or concerns about web accessibility, please contact Jonathan Faust at (212) 660-9555 or by email at jfaust@wkbllp.com.

Wilson Keadjian Browndorf, LLP Welcomes Jonathan J. Faust as New Partner

NEW YORK, NY, April 20, 2018 – Wilson Keadjian Browndorf, LLP is pleased to announce that Jonathan J. Faust will join the Firm as Partner and move his practice to the Firm’s New York office.

Mr. Faust is a veteran litigator and enhances the Firm’s capabilities with his wide-ranging experience as a general commercial litigator and accomplished business advisor. His practice includes civil disputes of every size and nature, across industries as varied as Fashion & Apparel, Construction, Information Technology, Real Estate, Banking and Waste Management. As representative examples of the breadth of his practice: (i) Mr. Faust successfully defended a foreign sovereign central bank against a putative class action pending in Federal Court in Illinois, involving complicated claims based on international law in which the plaintiffs sought damages that exceeded 40% of Hungary’s GDP; (ii) he regularly handles mid-sized contract, employment, discrimination, restrictive covenant, landlord-tenant and intellectual property disputes; and (iii) he cost-effectively represents the individual principals of clients in smaller, personal matters pending in New York Civil Court.

“I’m looking forward to working with such a talented group of professionals whose goals align with mine when it comes to client offerings,” said Mr. Faust. “My job is to be a problem solver and facilitator, helping my clients achieve their goals in a practical, effective, and cost-efficient manner.”

“Jon adds incredible skillsets to the Firm’s talent pool. In addition to being a tremendous lawyer, Jon is also greatly admired for his unique achievements,” said Michael Keadjian, Managing Partner of Wilson Keadjian Browndorf, LLP. “Jon’s experience advising sophisticated clients in a broad range of corporate matters will make him a great addition to our New York team and a sought-after resource for clients. This is an exciting time as we commit to building a dynamic, thriving legal practice in this amazing city.”

Mr. Faust earned his J.D., from Columbia Law School. He graduated summa cum laude from the University of Michigan with a B.A.

 

About Jonathan J. Faust

Jonathan J. Faust will serve as Partner of Wilson Keadjian Browndorf, LLP’s New York office. After 25 years as a successful general commercial litigator at an Am-Law 100 law firm, Mr. Faust brings to WKB extensive trial and appellate experience, in both state and federal court.  His practice also includes mediation and arbitration.  He is an accomplished business advisor, who serves as the outside general counsel and sounding board to clients — helping them navigate through volatile currents to clear seas no matter the nature of their concerns.   Mr. Faust’s legal and business insights are burnished by his additional experience as the Senior Counsel to the Claims Resolution Tribunal in Zurich, Switzerland; as General Counsel to Fast Track Nutrition; and as a Special Assistant District Attorney with the Manhattan District Attorney’s Office.

Mr. Faust is a well-known and respected thought leader, having lectured generations of future movers and shakers at Columbia Law School in New York, the University of Michigan Law School and at Eötvös Loránd University in Budapest, Hungary.

At his prior firm, Mr. Faust was the partner directly responsible for recruiting recently graduated law students and integrating them into permanent associate positions. He also was a partner member of that firm’s Attorney Retention Committee tasked with identifying and improving quality-of-life issues.

Mr. Faust’s dynamic leadership, energy and “can-do” attitude carries over into his other pursuits.  He is the Commissioner of, and a volunteer firefighter (Lieutenant) in, the Greenville Fire District.  He is also a member of the Edgemont Union Free School District School Board, one of the country’s top performing public schools.  Mr. Faust plays soccer and softball, and trains in combat sports.

When Mr. Faust takes on a matter, his clients reap the benefit of his considerable knowledge, experience and intense personal investment.  Mr. Faust has a consistent track record of success and cost-effectively realizing his clients’ goals.

 

About Wilson Keadjian Browndorf, LLP

WKB is a full-service law firm, offering its clients the energy, efficiency, and creativity of a smaller more flexible firm, with the skills and experience of a larger firm. WKB’s attorneys’ experience is as diverse as their client base and includes significant experience in traditional industries such as finance, project development, construction, intellectual property, media and real estate, as well as emerging areas such as automation, e-mobility, and life sciences. The Firm’s model allows it to provide the same type of professional results as the larger firms but at far more competitive rates.

 

Media Contact

Danny Kim

dkim@wkbllp.com

Social Media Contacts

Facebook @WKBLLP

LinkedIn @WilsonKeadjianBrowndorf

Facebook’s Data Practices Saga

As we all know, the personal data of about 87 million Facebook users have been “shared” without their knowledge with Cambridge Analytica (“CA”), a firm linked to Donald Trump’s 2016 political campaign.  Seemingly, Facebook knew of this incident in December of 2015, but Facebook users only found out this past March 17 when the New York Times reported it.  In commenting on this latest scandal, the Economist was quick to point out the Company’s “morphing, porous privacy policies and … a cavalier approach to oversight.”

When Mark Zuckerberg testifies in Congress today, U.S. lawmakers will be sure to focus on this breach’s effects on the election process and the identity of those posting news. This highlights the dramatic differences in how personal data is viewed between the U.S. and the European Union. Facebook and other data collectors fully believe that they have the right to use personal data as they deem fit. EU constituencies expect the opposite, and the new Regulation places all control over personal data in the hands of data holders. Given the global reach of any online information, uniform rules and approaches to protecting personal data would be of benefit, but given these conflicting views, we are more likely to see different data practices in the U.S. and in Europe, with data collectors applying a different treatment to U.S. data than EU personal data.

 

Leslie Williams, partner Wilson Keadjian Browndorf LLP

© 2018 Leslie Williams

This article is current as of April 10, 2018

German Court Curbs Facebook User Terms

On January 16, 2018, and in another step toward reigning in Facebook’s data practices in Europe, a Berlin district court issued a 250,000 judgment against Facebook Ireland Ltd. and ordered the company to change many of its terms of use for German users of the social network.[1]

Here are a few of the main points:

Facebook cannot require German users to register using their true name.  Users can register under an anonymous or pseudonymous name. This is an issue which was raised at least as early as 2012 by the Federation of German Consumer Organizations (VZBV), but remain unresolved until now.[2]

Current Facebook practices in which certain privacy settings are pre-set or set by default are not permitted. Users of the mobile app must be able to opt in to sharing their location.  Users must also consent expressly to:

  1. Use of sites such as Google to show a user’s profile in search results;
  2. Facebook’s use of user names and profile for commercial, sponsored or other applications; and
  3. any transfer of personal data to the U.S.

Facebook opposed the decision and plans to appeal. Nevertheless, the Plaintiff, VZBV, welcomed the ruling as an overall success for users.  The VZBV is also expected to appeal on the points it lost, such as the finding that Facebook’s advertising its service as “free and always will be” is admissible and not confusing.

For any U.S. companies which collect, use, or process personal data of data holders resident in the EU, the means of showing compliance, disclosures, and consents to be obtained from the data holders has increased, become more restrictive, and the enforcement of data protection rules will become more stringent by this coming May when the EU General Data Protection Regulation[3]  becomes effective.

For more information see http://www.wkbllp.com/legal-article-data-protection.


[1] AZ 16 O 341/15: http://www.spiegel.de/netzwelt/web/facebook-voreinstellungen-landgericht-berlin-sieht-verbraucherschutz-verstoesse-a-1193024.html

[2] http://www.bbc.com/news/technology-43035968

[3] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (OJ L 119, 4.5.2016, p. 1–88)