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Ban on “Disparaging” Trademarks Struck Down

Posted: July 28th, 2017

On June 19, 2017, the U.S. Supreme Court struck down a 70-year-old provision under the Lanham Act that barred the federal registration of disparaging trademarks. In Matal v. Tam (15-1293), the Court held that that the disparagement clause was an unconstitutional restriction on speech and the U.S. government cannot refuse to register a trademark based on the offensiveness of the mark.

In Tam, the controversy arose from a rejected trademark application for THE SLANTS by an Asian-American dance rock band. The United States Patent & Trademark Office (USPTO) denied the application based on the federal provision barring the registration of disparaging trademarks because the mark may be disparaging to Asian-Americans. The Trademark Trial and Appeal Board affirmed the denial, but the U.S. Court of Appeals for the Federal Circuit held that that the disparagement clause was facially unconstitutional under the First Amendment. The Supreme Court unanimously affirmed the Federal Circuit’s judgment.

Writing for the Supreme Court, Justice Samuel Alito concluded that, despite the role of government in the registration process, trademarks constitute private rather than government speech. Specifically, the government merely registers the contents of others’ trademarks; it “does not dream up these marks,” “it does not edit marks submitted for registration,” and the USPTO has made clear in the past that registration does not constitute government approval of a particular mark.

This recent decision will likely have a direct impact on the Washington Redskins’ canceled registrations for REDSKINS, which the USPTO canceled on the basis that the name disparaged Native Americans. The Washington Redskins’ appeal, which is pending in the Fourth Circuit Court of Appeals, was stayed pending the outcome of the Tam case. Keep an eye on our blog for further updates.

Thinking Positively About International Compliance

Posted: July 28th, 2017

Tags: international

Companies tend to think about corporate functions as one of two things: a revenue center or a cost center. An employee or division of a company either makes money or costs money. Human Resources, for instance, is typically considered a supporting function: a cost center. A sales team, by contrast, is a revenue center. Companies tend to think of international compliance programs, such as the Foreign Corrupt Practices Act (FCPA), international sanctions, or anti-money laundering, as cost centers. In other words, companies spend money to comply with these laws and regulations because they must.

Truly successful companies, however, think positively about their compliance and legal functions and view them if not as revenue centers, then at least as adding value. Building an FCPA compliance program, for instance, needn’t cost an inordinate amount of money, and for any company selling products or services overseas, particularly in highly regulated industries, such a program is vital. Compliance programs should always be risk-based, meaning that a company should look at its unique risk profile regarding the nature of its business, the risks of the countries in which it does business, and so on. One size does not fit all, and a small manufacturer exporting to Asia shouldn’t have the same compliance program as a Fortune 100 company.

A good international compliance program enables companies to identify and mitigate costly regulatory and reputational risks, and therefore helps companies protect value. However, compliance is largely about deepening one’s understanding of the markets and partners with which you do business, and therefore can also create value. When building an FCPA compliance program, a company should educate its workforce about corruption risks in certain countries and conduct due diligence on its customers and partners in high-risk countries, such as China, Russia, or Brazil. This information can provide critical insights, improve cultural understanding when operating overseas, and give a company deeper understanding of the opportunities in a market. FCPA compliance is also about conducting business openly and ethically and is proven to positively impact corporate culture, building trust and dialogue both inside and outside of the organization.

It is easy to think of legal and compliance functions simply as cost centers, but companies should resist that temptation. At the very least, take the time to think broadly about how building effective compliance programs can positively impact other aspects of your business. You may be surprised.

Don’t Be Afraid to Have a Plan B in Negotiation

Posted: July 28th, 2017

By: Joe Campolo, Esq. email

Tags: negotiation

There are many myths in negotiation. Among them: effective negotiators are born, not made. Experience is all you need to be a good negotiator. The strong negotiator never exhibits empathy. And perhaps the most stubborn myth? That having a Plan B makes you weak and gives you an easy out, preventing you from ever achieving your Plan A.

In their iconic bestseller Getting to Yes: Negotiating Agreement without Giving In, Roger Fisher and William Ury coined the term “BATNA” – or “Best Alternative to a Negotiated Agreement” – to describe what is essentially a Plan B. Of all your possible alternatives, your BATNA is the option that best meets your goals and that you will most likely take if your ideal outcome remains out of reach. (The Program on Negotiation at Harvard Law School also offers some important insight on BATNA and other negotiation topics – it’s worth checking out.)

Skilled negotiators understand that thinking through the possibilities and deciding on a Plan B won’t prevent you (or your attorney) from negotiating hard enough to achieve your desired result. Instead, they know that coming to the negotiation table with a well thought out BATNA is empowering – not a weakness.

Consider the following scenario: the party your restaurant is hosting this weekend just doubled in size. Jackpot! But as you’re reviewing ingredients, you realize you’re running low on quite a few things. You call your supplier; sensing your desperation, he has little incentive to give you a bargain. Is that his cash register you hear in the background?

Now imagine you call that supplier after you’ve already spoken to a couple of other suppliers. Sure, you may still be desperate to get your hands on the ingredients – but now, you can negotiate with your preferred supplier to lower his price, throw in some freebies, offer free shipping, or whatever the case may be, because now you have BATNA – an alternative. You can use the price or whatever favorable deal terms the other suppliers are offering as leverage to negotiate with your preferred supplier for what you want. And if he won’t budge, you have options besides either overpaying or having to tell your customer you can’t accommodate her.

Indeed, having a well thought out BATNA also helps you know whether to keep negotiating or walk away. If the sticker price on your desired new car is $38,000 at your local dealership but you saw it at a second dealership for $36,000, the second dealership’s price becomes your BATNA. Your ideal outcome is to negotiate with the first dealership to match or beat the lower price. If they won’t, you’ll buy the car from the second dealership. Putting in the effort to do your research and come up with your BATNA before walking into the first dealership arms you with the knowledge you need to determine when to walk and whether you’re getting a good deal.

The myth that having a Plan B will keep you from negotiating your way to Plan A should be filed away in the “debunked” category. BATNA also serves as an important reminder that as with everything in negotiation, preparation is key.

Middleton quoted in Newsday article “Attorney: Smithtown Animal Shelter Director Fired After Hearing”

Posted: July 28th, 2017

By Nicholas Spangler nicholas.spangler@newsday.com

Smithtown’s animal shelter director, who was suspended earlier this year over accusations that the facility had become chaotic and filthy, was fired this week, an attorney for the town said.

The Town Board voted 5-0 on Tuesday to terminate an unnamed employee, and Town Supervisor Patrick Vecchio would not comment on the matter this week. But Scott Middleton of Campolo, Middleton & McCormick, the attorney who represented the town in a disciplinary hearing this spring for former director Sue Hansen, confirmed Thursday that the board had terminated Hansen.

The independent hearing officer who had presided over that four-day hearing, James Clark, had recommended in a July 18 report that Hansen be fired, calling her a “dedicated animal activist” who was nevertheless “not suited for the role of Director.”

He recommended that the Town Board find her guilty of five of seven charges of incompetence and mismanagement, faulting her for waiting months to fix inoperable fire alarms, storing official records in outdoor dog kennels and allowing conditions to deteriorate to the point where town employees visiting the shelter complained of fleas and rodent droppings and an eye-watering stench.

Hansen did not respond to requests for comment this week. Paul Dashefsky, her union-appointed attorney, also did not respond to requests for comment. At the hearing, Dashefsky had portrayed Hansen as an innovative, driven leader brought in to turn around the troubled shelter but hamstrung by an indifferent town bureaucracy and senior officials who had given her little assistance or training.

Clark largely dismissed those claims. “She cannot avoid responsibility for the problems that her decisions ultimately created,” he wrote in his report.

Hansen, 61, of Rocky Point, started her job in August 2015 and was paid a salary of about $84,138. A town public safety employee with a background in animal care has been running the shelter since her February suspension.

In March, Hansen was charged with misdemeanor trespass after allegedly entering the shelter to attend a volunteer orientation, even though town officials told her to stay away during her suspension. She was released on her own recognizance with a desk appearance ticket and is due back in court Aug. 16, according to records.

Hansen since has filed a notice of claim announcing her intention to sue the town and several town employees and officials, including Councilwoman Lisa Inzerillo, for $500,000 over her arrest.

According to the claim, which does not address Hansen’s suspension, Inzerillo was at the center of a plan to ensure her removal from the shelter supervisor’s job. Inzerillo did not immediately respond to a request for comment.

“We find the allegations and the notice of claim to have absolutely no merit,” said Middleton, who is representing the town in the matter.

But Matthew Weinick, the lawyer representing Hansen in her civil case, said the intent behind her arrest “was malicious.”

“Why should there be any reason to arrest a peaceful 61-year-old woman who just wanted to volunteer at the animal shelter?” Weinick said. “It’s just bizarre.”

Read it on Newsday.

September 27 – Malafi to Present at “Law School for Insurance Professionals”

Posted: July 21st, 2017

Event Date: September 27th, 2017

Hiring Tips Joe Campolo CMM partner Christine Malafi will present at “Law School for Insurance Professionals” on the topic of “Legal Procedures and Nuances that Impact a Claim.” Christine’s talk will address how procedural hurdles such as collateral source, contribution, offset and pre/post judgment interest affect claims in comparison to substantive steps faced in litigation like IME results, appealing judgments, and a bankrupt insured. Attend to receive insights and updates on current legal issues that the savvy insurance professional won’t want to miss!

Program details:

September 27, 2017 – 8:30 a.m.
Inn at Fox Hollow, 7755 Jericho Turnpike, Woodbury, NY

Co-sponsored by the New York State Bar Association, the New York Insurance Association, and the Insurance Federation of New York.

September 27 – Malafi to Present at “Law School for Insurance Professionals”

Posted: July 21st, 2017

CMM partner Christine Malafi will present at “Law School for Insurance Professionals” on the topic of “Legal Procedures and Nuances that Impact a Claim.” Her presentation will help insurance professionals understand how procedural hurdles such as collateral source, contribution, offset and pre/post judgment interest affect claims in comparison to substantive steps faced in litigation such as IME results, appealing judgments, and a bankrupt insured. The program promises insights and updates on current legal issues that the savvy insurance professional won’t want to miss!

Program co-sponsored by the Insurance Federation of New York, Inc., the New York Insurance Association, and the New York State Bar Association.

Program Details:

September 27, 2017, 8:30 a.m.

Inn at Fox Hollow, 7755 Jericho Turnpike, Woodbury, NY

Learn more and register here.

September 26 – Yermash Shares Insights with Entrepreneurs at “LLCs, LLPs, DBAs & More: The Alphabet Soup of Entity Selection”

Posted: July 21st, 2017

Event Date: September 26th, 2017

You’re ready to start a business – congratulations! Before leasing space, hiring employees, or landing your first client, you’ll have to choose an entity type for your new endeavor. C-Corps, S-Corps, and LLCs, to name a few: each entity type comes with its own set of advantages and disadvantages depending on the nature of your business. Learn from a corporate attorney about the features of various common entity types, the pros and cons of each, and how to decide which makes sense for your business. The program will also address why so many businesses incorporate in Delaware and how to know if that option is right for you. Join us and arm yourself with the knowledge you need to build a strong foundation for your business.

Presented by Arthur Yermash, Esq., Campolo, Middleton & McCormick, LLP

Program Details:

Tuesday, September 26, 2017
9:00 a.m. – 10:00 a.m. (doors open at 8:30 a.m. for coffee and networking)
Miller Business Resource Center
Middle Country Public Library
101 Eastwood Blvd.
Centereach, NY 11720

Summer Repairs Mean a Better LIRR Is on Its Way

Posted: July 20th, 2017

By Mitchell H. Pally

Published in Long Island Business News, July 17, 2017

Mitchell H. Pally is an MTA board member representing Suffolk County.

As the Long Island Rail Road enters a summer of 2017 with significant challenges from a variety of issues, including the extensive repairs being undertaken by Amtrak at Penn Station, it may be difficult to envision a much more efficient and safer system, unimpeded by various infrastructure impediments. However, if we can all get though the current short-term frustrations, the longer term will provide such a system. There are significant improvements on the way which will lead to a much more constructive relationship with our customers.

As many may be aware, but cannot see, the new east side access connection to allow the LIRR to move trains directly to Grand Central continues on its path to completion. Deep under the current Grand Central Terminal, the LIRR is building a brand new station which will increase the capacity by 40 percent and allow our customers to go directly into Midtown Manhattan rather than the current trip to Penn Station and then to Midtown. The new rail line is now being built through Sunnyside Yard in Queens to allow the current LIRR service to connect to the rail tunnel at 63rd St. and then travel underground to the new station.

In addition to this new station and service, two major track programs are either under construction of just about ready to go. First, for those of us who use the Ronkonkoma line, a new second track is being built between Farmingdale and Ronkonkoma to allow for increased and more flexible service on this branch. In addition to the tracks themselves, the entire signal system in this corridor is being upgraded and a new station is being developed at East Farmingdale to be incorporated into a new transit oriented development being designed by the Town of Babylon. When fully completed in 2019, the new second track will allow half hour off-peak service on the Ronkonkoma line, a service already provided by the LIRR on other lines in the system.

Second, the decision to build a third track between Floral Park and Hicksville, one of the most congested areas of the system where four lines congregate, is currently in the hands of the MTA capital program review board, having already been approved as part of the 2015-19 MTA capital plan by the MTA board. As a result of state funding and bonding requirements, the Capital Program Review Board was created to ensure that all MTA priorities were in line with the needs of the entire state.

Currently the review board has before it a comprehensive amendment to the 2015-19 plan which not only includes funds for the third track but also for significant rail and subway improvements throughout the region, improvements which will also be allowed to proceed or not to proceed by the vote of the review board.

The board can only vote up or down on the entire amendment, it cannot pick and choose individual projects to vote up or down on. Hopefully, the third track will be allowed to continue, for it includes not only the new track but a complete overhaul of the signal and track systems in the area.

From a safety perspective, numerous smaller track and signal projects are being undertaken by the LIRR to coincide with the major signal work being performed by Amtrak in and around Penn Station and Sunnyside Yards. In addition, the LIRR is well on its way to meeting the 2019 deadline for installation of positive train control on all of our lines to ensure that the most up-to-date safety features are incorporated in our entire system.

I have had the honor and privilege of being a member of the MTA board representing Suffolk County for the past 12 and have seen times of both great service to our riders as well impediments which have negatively impacted the LIRR’s ability to provide safe and efficient service. I strongly believe that Long Islanders are both resilient and patient during these very frustrating times and will understand the long-term gains which will occur for the current short-term frustrations.

All of us want to provide the best and most efficient and safest system possible and I firmly believe that we are on our way to accomplishing these goals. We only ask for your understanding during these difficult times.

Read it on LIBN.

In a Victory for the Election Process, CMM Secures Certification of Election Results as Special Counsel to Village of Poquott

Posted: July 20th, 2017

In its role as Special Counsel to the Village of Poquott and Of Counsel to the Village Attorney for the Village of Poquott, Campolo, Middleton & McCormick, LLP, a premier law firm with offices in Ronkonkoma and Bridgehampton, successfully secured the certification of the results of the recent village trustee election. The outcome is a victory for the Village of Poquott and the election process.

Although Poquott officials maintained that the Suffolk County Board of Elections certified the final vote tallies in the June 20 election, Deborah Stevens, a candidate who lost her bid for one of the two open trustee seats by two votes, challenged those results in a lawsuit in Supreme Court, Suffolk County, seeking a re-canvass and/or correction of alleged errors concerning certain contested ballots. On behalf of the Village, CMM moved by order to show cause to dismiss the lawsuit by Stevens and certify the findings of the Suffolk County Board of Elections, declaring John Richardson and Jeffrey Koppelson the winners of the election. CMM persuasively argued that the numerous deficiencies in Stevens’s petition required its dismissal.

After a conference with the Court, the parties reached an agreement that CMM’s motion on behalf of the Village of Poquott to certify the election results would be granted, certifying that Richardson and Koppelson won the open seats. Further, Stevens agreed to withdraw her petition.

CMM partner Scott Middleton, who handled this matter on behalf of the Village, said of the outcome, “I don’t know what motivated this lawsuit, but the Village took it very seriously. This is the right result for the voters of the Village of Poquott under the Election Law of New York State.”

About CMM
Campolo, Middleton & McCormick, LLP is a premier law firm with offices in Ronkonkoma and Bridgehampton, New York. Over the past generation, CMM attorneys have played a central role in the most critical legal issues and transactions affecting Long Island. The firm has earned the prestigious HIA-LI Business Achievement Award and LIBN Corporate Citizenship Award, a spot on the U.S. News & World Report list of Best Law Firms, and the coveted title of Best Law Firm on Long Island. Learn more at www.cmmllp.com.

Photo by Arnaud Jaegers on Unsplash