• Covenant Not to Sue Forestalls Trademark Invalidity Claim

    On January 9, 2013, the U.S. Supreme Court in Already, LLC v. Nike, Inc. unanimously ruled that Already could not dispute the validity of one of Nike’s trademarks after Nike agreed not to sue the company for infringement. Nike sued Already, a designer and marketer of athletic footwear, for trademark infringement and Already counterclaimed to declare the trademark invalid. Eight months after filing suit, Nike provided Already with a covenant not to sue, and subsequently moved to dismiss all claims. In the covenant not to sue, Nike agreed to “unconditionally and irrevocably” refrain from making any claims or demands against Already, ...

    cmandm

    Monday, January 21st, 2013

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  • Looking Over the Cliff

    Well, happy new year to all. At the 11th hour Congress decided not to let us fall off the Fiscal Cliff by passing the American Taxpayer Relief Act of 2012. But what does that mean in the world of estate planning? There are a number of things that happened (or didn’t happen). So let’s go through each one. First, the federal exemption for gift and estate taxes was fixed permanently at $5 Million indexed by inflation, instead of reverting back to $1 Million. As of January 2013, that amount became $5.25 Million. This means that you can transfer the first $5.25 Million ...

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    Monday, January 21st, 2013

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  • Cuomo Signs Notice of Claim Legislation

    Governor Andrew Cuomo has approved legislation designed to streamline the process of filing lawsuits against municipalities and other government entities in New York, providing the groundwork for uniform, fair, cost-effective and straightforward statewide procedures for filing a Notice of Claim. State law requires individuals intending to sue government entities for any tort — such as a slip-and-fall or a malpractice at a public hospital — to file a Notice of Claim to alert a potential defendant of an impending lawsuit. Currently, they must be filed in the county in which an alleged incident occurred. The bill will allow plaintiffs to file notices of claim with the secretary of state in Albany, who would then notify ...

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    Thursday, January 10th, 2013

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  • Learn to Spot these 10 Negotiating Tactics

    Here’s how to spot 10 tactics that many negotiators use. These have nothing to do with the win-win successful agreements of a good negotiation. Learn what to do when somebody pulls these tricks. Awareness of these tactics can strengthen your own negotiation skills. 1.Left at the altar- The other party feigns backing out of a deal just before you are ready to complete the agreement. Hoping the tactic brings the other party closer to their position, the tactic often yields 11th-hour concessions. Your countermeasure: Don’t fall for the bait. Let the deal drop and go through a quiet period. Try resurrecting the ...

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    Wednesday, January 09th, 2013

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  • Standard to Obtain TROs in Trademark Infringement Claims Get Tough

    As everyone shops for toys this holiday season, many have encountered counterfeits that are strikingly similar at first glance, but with their low price point compared to the actual licensed product, these counterfeits have lured away or even deceived consumers. In response, toy developers and manufacturers who obtained federal trademark and copyright registrations commenced actions for trademark and copyright infringement, trademark counterfeiting, false designation of origin, and unfair competition, and sought a temporary restraining order and preliminary injunction to immediately stop the counterfeit sales. The standard to which a court will grant a temporary restraining order and preliminary injunction requires a showing ...

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    Monday, December 17th, 2012

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  • Choosing a Guardian

    For the past couple of months I’ve been talking about the different fiduciaries that are typically named in a Will or a Trust. There’s one that’s more specifically for younger people and it specifically goes in your Last Will and Testament. That’s the choosing of a guardian over your children.This is a very difficult conversation to have with clients. Can you imagine a young couple contemplating a future for their child in which those same parents don’t play a central role? Almost as much as parents pray that their children will outlive them, parents likewise hope that they will be ...

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    Sunday, December 16th, 2012

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  • New York State Wage Theft Prevention Act Deadlines Approaching

    As we reported several times over the last two years, New York enacted the Wage Theft Prevention Act (“WTPA”) requiring employers to furnish notices to employees addressing pay, overtime, and other pay-related information. As is the case every year, the annual notice must be distributed to employees between January 1, 2013 and February 1, 2013. If you employ individuals in New York State, or have affiliates and branches in New York that employ individuals, then you must comply with the current notification requirement of the WTPA. All employers should make sure this is handled promptly to avoid potential penalties and fines. Employers must provide a copy of the notice to the employee, have each employee ...

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    Monday, December 10th, 2012

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  • Landlord/Tenant Issues: Recent Appellate Cases

    Two appellate courts recently rendered decisions discussing landlord/tenant issues. The decisions, while breaking no new ground, do point out what can happen when parties fail to properly memorialize their landlord/tenant relationship and when a landlord fails to act to correct defective conditions in commercial premises. The first case is Joylaine Realty Co., LLC v. Samuel1 in which the Appellate Division affirmed the dismissal of landlord’s complaint holding that repeated flooding of the commercial premises combined with the landlord’s failure to take any action to correct the condition suspended tenant’s obligation to pay rent. The Appellate Division decision is short on facts ...

    cmandm

    Monday, December 10th, 2012

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  • Practical Examples of Using a BATNA in Negotiations

    Over the past few months, this blog covered the basics of negotiation theory, discussing some of the strategies and tools of a successful negotiator. Last month, we explored Roger Fisher and William Ury’s coined term BATNA. Coincidently, there was recently an article in the New York Times Business Section about the practical application of BATNA in Hollywood and Washington. The article is: In Talks, G.O.P. May Have to Just Say Yes By ROBERT H. FRANK Published: December 8, 2012 To read the article, click here.

    cmandm

    Sunday, December 09th, 2012

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  • Claim for Breach of Implied Contract Not Preempted by Federal Copyright Act

    In an important decision for the entertainment industry, the Second Circuit held that a claim under state law for breach of implied contract, including a promise to pay, is not preempted by the Federal Copyright Act. In 2010, a suit was brought by Forest Park Pictures against Universal Television Network, Inc. (the television production arm of NBCUniversal, a subsidiary of Comcast Corp., which controls USA Network), for breach of contract over USA Network’s show Royal Pains. Forest Park alleged that in 2005, it developed an idea for a show called “Housecall,” in which a doctor, after being expelled from the medical ...

    cmandm

    Tuesday, November 20th, 2012

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Fred Eisenbud