Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Coach Loses Design Mark Battle Against E&D Trading, Inc.

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Posted in Trademarks

On September 9, 2013

Coach Services, Inc., of the design house offering handbags, footwear and other luxury goods, recently lost a design mark battle challenging registerability of E&D Trading, Inc.’s (“E&D”) mark for DP in stylized format (the “Challenged Mark”) on the basis that it is likely to cause confusion with Coach’s federally registered “Signature C Design” marks. The parties’ marks both cover eyewear, among other goods. Coach’s protest was lodged with the Trademark Trial and Appeal Board (“TTAB”), an administrative body that is part of the Trademark Office and has authority to rule on challenges to registerability of marks, among other issues. TTAB proceedings and procedure are governed by the Federal Rules of Civil Procedure, as well as the detailed rules set forth in the TTAB’s Manual of Procedure (“TBMP”).

New Jersey Supreme Court Limits Emerging “Intertwinement” Theory of Compelling Arbitration

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Posted in General Litigation

On September 9, 2013

The New Jersey Supreme Court, in Hirsch v. Amper Financial Services, LLC ruled that “intertwined” parties and claims alone are insufficient to compel arbitration on grounds of equitable estoppel. The plaintiffs in Hirsch purchased two securitized Med Cap notes worth $550,000 through a financial advisor representing broker-dealer Securities America, Inc. (“SAI”). They ultimately lost their investment after an SEC investigation indicated that Med Cap was a Ponzi scheme. Pursuant to an arbitration clause in their purchase applications, plaintiffs initiated FINRA arbitration proceedings against SAI and the financial advisor. In tandem with their arbitration claims, plaintiffs filed a civil action against their accountant EisnerAmper, LLP—who had recommended the financial advisor—and Amper Financial Services, LLC (“AFS”) of which the financial advisor was managing partner and 50% shareholder. EisnerAmper and AFS impleaded SAI for indemnification and contribution. In response, SAI moved to compel arbitration, despite the fact that plaintiffs had not agreed to arbitrate claims with either EisnerAmper or AFS. EisnerAmper and AFS joined in SAI’s motion to compel arbitration, which the trial court granted.

The Case for Getting Aggressive with Workplace Bullies

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Posted in Policies and Handbooks

On September 6, 2013

You have heard about bullying on the playground but, did you know it has moved into the workplace? Bullying is now an important employee relations issue for businesses and employers must be aware of the problem and address it. In their recent article published by The Metropolitan Corporate Counsel entitled “The Case For Getting Aggressive With Workplace Bullies,” Kelly Bird and Lindsay J. Jarusiewicz focus on the following concerns: What is workplace bullying? How can workplace bullying impact employers and employees? Are there any laws against workplace bullying? How can employers address the issue?

Appellate Division Finds a Six Year Statute of Limitations Applicable to New Jersey Spill Act Claims

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Posted in Environmental and Green Issues

On September 4, 2013

In what is a potential game changing decision, the Appellate Division of the Superior Court of New Jersey, in Morristown Associates v. Grant Oil Company, et al., Docket No. A-0313-11T3 (App. Div. Aug. 23, 2013) recently held that the six year statute of limitations applicable to property damage claims is applicable to private claims pursuant to the New Jersey Spill Compensation and Control Act.

NLRB Judge Finds Class Waiver Provision in Mandatory Arbitration Agreement Violates NLRA

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Posted in Labor

On August 29, 2013

Last week, a National Labor Relations Board Administrative Law Judge (the “ALJ”) found that a Missouri cellphone retailer violated the National Labor Relations Act (the “NLRA”) by requiring, as a condition of employment, its sales representative employees to enter into arbitration agreements mandating that all employment disputes be subject to individual arbitration. In doing so, the ALJ rejected the employer’s argument that the Supreme Court’s recent decision in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), supported enforcement of the arbitration agreement. In American Express Co., the Court held that class action waivers in arbitration agreements are enforceable under the Federal Arbitration Act (“FAA”), even when the plaintiff’s cost of individually arbitrating a federal statutory claim is prohibitively expensive.

Prejudgment Interest on Claims for Consequential Damages for Breach of Contract are not Recoverable as of Right Under Pennsylvania Law

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Posted in Construction Litigation / Contract Claims

On August 27, 2013

Parties often specify in their construction contracts what amounts are recoverable for various events of breach. These provisions can impact not only the award of damages, but also whether amounts should be added to the award for recovery of prejudgment interest under Pennsylvania law. In Cresci Construction Services, Inc. v. James H. Martin, the Pennsylvania Superior Court considered the circumstances under which recovery of prejudgment interest is mandatory as opposed to discretionary. In that case, the plaintiff contractor brought suit against the defendant homeowner, and the homeowner counterclaimed for breach of contract.

Can You Find Me Now?: New Jersey Supreme Court Says Police Need a Warrant to Access Location Information From a Cell Phone

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Posted in E-Discovery: Legal Decisions and Court Rules

On August 23, 2013

“Advances in technology offer great benefits to society in many areas. At the same time, they can pose significant risks to individual privacy rights.” So begins the recently-issued unanimous decision of the New Jersey Supreme Court in State v. Earls, in which the Court found that “cell-phone users have a reasonable expectation of privacy in their cell-phone location information” and, therefore, under the New Jersey Constitution, “police must obtain a search warrant before accessing that information.” Coming at a time when the public’s attention is particularly focused on the tension between technology and privacy, this opinion represents a groundbreaking new rule of law on the constitutional limits of new methods of tracking and surveillance. (See also the U.S. Supreme Court’s 2011 decision in United States v. Jones and the New York Court of Appeals’ recent opinion in Cunningham v. New York State Department of Labor.) With this unprecedented decision, the New Jersey Supreme Court becomes the first state supreme court to find a constitutionally-protected privacy right in the location of a personal cell phone.

Gibbons Institute Presents, “Federal Circuit Year in Review,” Event Featuring Honorable Faith Hochberg

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Posted in Intellectual Property

On August 23, 2013

The Gibbons Institute of Law, Science & Technology, and the Student Intellectual Property Law Association present, “Federal Circuit Year in Review,” an event featuring the Honorable Faith Hochberg, District Judge for the U.S. District Court for the District of New Jersey. This program will discuss key IP issues decided by the Federal Circuit over the past 18-months and the practical implications of these issues moving forward. Along with Judge Hochberg, panelists include: Ralph A. Dengler, Director, Intellectual Property Department, Gibbons P.C.; Erik Lillquist, Vice Dean & Professor of Law, Seton Hall Law School; and David Opderbeck, Professor of Law and Director, Gibbons Institute of Law, Science & Technology, Seton Hall Law School.

Father’s “Lifestyle” as Portrayed on Internet Causes Dramatic Increase in Child Support Obligations

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Posted in E-Discovery: Legal Decisions and Court Rules

On August 19, 2013

A recent New Jersey Appellate Division decision in Fitzgerald v. Duff provides a potent reminder that if you are involved in litigation, anything you do or say online might be used against you in court. The Fitzgerald proceedings concerned a father’s attempt to modify a previously-entered child support order by submitting his 2011 income tax return, which reported a taxable income of $21,000 from a cash tattoo business. In opposition, the child’s legal custodian filed a certification opposing modification of the support order, suggesting that much of the defendant’s income was unreported, and that a much higher child support obligation was warranted. To support that position, the custodian submitted copies of defendant’s web site, Facebook photographs, and various social media comments evincing his success. The website identified multiple locations at which the tattoo parlor operated and plans for its imminent expansion, featured three staff tattoo artists, and advertised that defendant provided tattoo services for professional football players. The Facebook photographs depicted defendant throwing $100 bills, his speed boat, a 2011 Chevrolet Camaro (plaintiff also maintained defendant owned a Lincoln Navigator), his elaborate tropical wedding, and accompanying diamond engagement and wedding bands. Finally, comments from the father’s Myspace page included statements that in four hours he earns $250, his schedule had “been packed so [he could] pay for this wedding,” and that he purchased television advertising spots.

NLRB Has Five Board Members for First Time in a Decade

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Posted in Labor

On August 14, 2013

On Monday, the National Labor Relations Board announced that the Senate has filled all five of its Board Member seats for the first time since August 21, 2003. Moving forward, this ends the debate as to whether the Board has the constitutional authority to take action, such as issuing decisions, so long as three of these Senate-confirmed members are present when the Board takes action.

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