CryptocurrencyOver the last several months, there have been dozens of news stories about cryptocurrencies, Blockchain, and the related technologies they have created. One item, in particular, has received an incredible amount of press—the NFT. Who has not heard of the $69 million price tag on Everydays – the First 5000 Days and other outlandish prices for digital art. This article will try to explain just what an NFT is and, because of their relationship to the creative arts, some of the intellectual property issues surrounding them.

It all starts with Blockchain

Blockchain is a technology that has emerged as an innovative, record-keeping technology that authenticates transactions. It is essentially a transaction ledger that is open and decentralized, so anyone, with proper access credentials, can view the ledger to the authenticity of whatever is being transferred and the chain of ownership. Blockchain is the technology behind cryptocurrencies like Bitcoin and Dogecoin and ensures that the cryptocurrencies being transferred in a transaction are authentic.

What is the difference between “fungible” and “non-fungible”?

Continue Reading NFTs and Intellectual Property

Wine GlassesOn May 13, 2021, Florida Governor Ron DeSantis signed into law Senate Bill 148, which allows restaurants or other alcohol beverage vendors to sell alcoholic drinks to-go.  No, this does not mean that Florida is an open container state; possession of an open alcoholic container in Florida is still illegal under Florida Statutes, section 316.1936 and 856.011. However, customers who want to order take-out from their favorite restaurant can now also bring home their favorite cocktail, providing the restaurant meets certain requirements.

The alcoholic drinks to-go initially started through one of DeSantis’s emergency orders as a way for struggling restaurants during the COVID-19 pandemic to increase their sales. “Alcoholic drinks to-go became an important source of revenue for restaurants that were trying to survive during the pandemic,” DeSantis noted. Throughout the pandemic, restaurants were some of Florida’s businesses that were most affected. Florida Representative Josie Tomkow stated, however, that the new law

allows for restaurants to continue to offer alcohol-to-go as an option. This pro-consumer, business-friendly bill will help support our restaurant industry and its tens of thousands of employees.”

Requirements

Continue Reading I’ll Take it To-Go: New Florida Law Makes To-Go Alcohol Sales Permanent Effective July 1

There is no such thing as an unimportant Supreme Court of the United States (SCOTUS) opinion. As someone who vigorously defends the media in First Amendment cases, I eagerly awaited the SCOTUS opinion in Maloney Area School District v B.L. The opinion was rendered on June 23, 2021, and I quickly read it looking for nuggets I could use in the representation of my clients. Although the case did not involve media, the 8-1 (Justice Thomas dissenting) decision importantly upheld First Amendment protections.

Defenders of the First Amendment will hail the decision as another important victory for free speech and will no doubt cite to the opinion authored by Justice Breyer and the significant statements concerning the importance of the First Amendment:

  • “America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect ‘the marketplace of ideas.’ That marketplace must include the protection of unpopular ideas, for popular ideas have less need for protection.”
  • “The First Amendment protects ‘even hurtful speech on public issues to ensure that we do not stifle public debate.’”

Take-Away

Continue Reading SCOTUS Decision on First Amendment Rights: Who Really Won?

COVID-19 vaccineOn June 12, 2021, a federal judge entered an Order dismissing a hospital employee’s lawsuit attempting to block a hospital policy requiring employees to receive a COVID-19 vaccine. Houston Methodist Hospital announced a policy on April 1, 2021, mandating that all employees receive one of the COVID-19 vaccines. The hospital eventually suspended 178 employees without pay for their refusal to get vaccinated. Jessica Bridges, along with 116 other hospital employees, brought suit to block the vaccine requirement and to overturn their suspensions and possible terminations.

At the beginning of 2021, there was much speculation throughout the country regarding whether or not employers could require employees to receive a COVID-19 vaccine. In a previous article, Can Employers Require Employees to Receive the COVID-19 Vaccine?, I indicated that the answer appeared to be yes, with some exceptions. Now U.S. District Judge Lynn N. Hughes appears to have confirmed this through his dismissal of Bridge’s lawsuit.

Plaintiff’s argument opposing COVID-19 vaccine

Continue Reading Federal judge upholds employer’s COVID-19 vaccine requirement

health insuranceSponsors of group health plans have new responsibilities following the passage of the American Rescue Plan Act (“ARPA”) on March 11, 2021. Under ARPA, certain participants and beneficiaries of employer-sponsored health plans are eligible for a federal subsidy, which will cover for a limited period 100% of the premium for COBRA continuation coverage. The subsidy is also available in the case of plans covered by Florida’s mini-COBRA law, which applies to group health plans of employers having fewer than 20 employees.

The Importance of Being an “Assistance Eligible Individual”

Federally subsidized COBRA coverage is available only to a person who is an Assistance Eligible Individual (“AEI”) under ARPA. This term comprehends an employee or former employee, and any dependent, losing group health plan coverage as a result of an employee’s reduction in work hours or involuntary termination.

Persons losing coverage because of an employee’s voluntary retirement are not AEIs. Nor is anyone who is eligible for coverage under another group health plan, such as through a spouse’s employment, or for Medicare, an AEI, even though they don’t enroll in the alternative coverage. These individuals may be eligible to elect COBRA, but they will generally have to pay for the coverage themselves.

ARPA Subsidy Availability

The COBRA subsidy first became available on April 1, 2021, but can be retroactively effective to that date for AEIs having COBRA coverage at the time, who may be reimbursed for premiums they paid or receive a credit against future premiums.

In many cases, an AEI who was not already covered by COBRA at the beginning of the subsidy period will be able to elect COBRA continuation coverage retroactive to April 1, 2021, and have the cost of the coverage completely paid by the federal government, regardless of its cost or the individual’s income level.

The longest period any AEI can qualify for a subsidy is six months, and no AEI can receive a subsidy for a coverage period extending beyond September 30, 2021.

Employer Role in Payment Process

Continue Reading Employer Responsibilities under the Temporary Federal COBRA Subsidy

IP LawAfter years of research and development, your company is finally about to launch a new “game changing” product. You know you need to protect this product, but where do you start? What do you name your new product, and how do you protect that name? These and other frequently asked questions often arise in new entrepreneurial ventures — whether for new businesses or new product lines for existing businesses.

Most business owners intuitively understand the value of their intellectual property. They understand that their products, brands and other ideas need to be protected, but can be confused by some of the “jargon” used in intellectual property law with words like “patent,” “trademark” and “copyright.” This post helps explain some of the key differences between patents, trademarks and copyrights.

What is a patent?

A patent is a legal right to exclude others from making, using, selling, offering for sale, or importing a patented invention for a fixed period of time. In the U.S., patents are exclusively under federal jurisdiction and are awarded by the U.S. Patent and Trademark Office in exchange for making public an enabling disclosure of the invention, and generally last for 20 years (15 years for design patents).

Continue Reading What is the difference between patents, trademarks and copyrights?

Hello My Name IsWhen launching a business or a new product, one of the most important initial considerations is the name of that business or product. The name is the first thing a potential consumer comes into contact with and what the consumer will remember. The name is the vehicle by which all marketing will travel and will be repeated over and over in advertising, on social media and websites. It is, therefore, one of the things that businesses strive to “get it right.”

Usually, this is something that is left to the creative types — those who understand market research, focus groups and creating all-around brands. However, even at the early stages, businesses should pay attention to the legal side of branding to make sure they “get it right.” If you are launching a new business or a new product, be sure take into consideration the following areas.

Will the name also be the company name?

If so, in addition to any trademark concerns, it is imperative to check that the company name is available in the state where the business will be formed. Most states do not allow two businesses to have identical names, regardless of the goods or services they offer.

Is the name distinctive?

Continue Reading Branding 101: What’s in a Name?

COVID-19 VaccineWith three coronavirus vaccines approved for use in the United States, an end to the pandemic appears in sight. But returning to normal comes with plenty of unknowns. For employers looking to reduce (or eliminate) virtual working, several pertinent questions are now surfacing.

Can I ask employees if they have been vaccinated?

The law generally prohibits employers from probing into an employee’s medical history. It is acceptable for a supervisor to ask if an employee is feeling OK or can complete work for the day. However, it is another story when an employer starts asking questions to determine if an employee is pregnant, diabetic, or suffering from some illness. The Americans with Disabilities Act (ADA) prohibits employers from forcing an employee to disclose disabilities or serious medical conditions.

Thankfully, the Equal Employment Opportunity Commission (EEOC) has removed any uncertainty about how the ADA applies in this context. According to recent guidance from the EEOC, employers are permitted to ask employees if they have been vaccinated and for documentation of the vaccine. Employers should, however, avoid health inquiries that probe into other areas not related to the vaccine, as this could run afoul of other employment laws relating to discrimination and disability.

Can I offer incentives for my employees to be vaccinated?

Continue Reading Coming Back to Work – Common Coronavirus Questions by Employers

iphone photoUnbeknownst to most software users, many of the world’s largest software companies have relatively complicated software license terms in the event of a user’s death. This can present an emotional and unnecessary complication at a loved one’s passing.

An illustrative and all too commonplace example of this can be found in the terms and conditions of Apple’s iCloud platform. One section of the terms of service of Apple’s iCloud software (as of the publication date) entitled “No Right of Survivorship” which provides that:

Unless otherwise required by law, You agree that your Account is non-transferable and that any rights to your Apple ID or Content within your Account terminate upon your death. Upon receipt of a copy of a death certificate your Account may be terminated and all Content within your Account deleted. Contact iCloud Support at https://support.apple.com/icloud for further assistance.”

In other words, Apple has a right to terminate an iCloud account and delete all the data stored in that account upon a user’s death. Many companies structure software licenses in this manner in order to avoid potential contractual liability in the event of a dispute over access to a deceased user’s account.

Legal Rights to Access Digital Content

Continue Reading Digital Intellectual Property: What rights does Apple have over digital photos upon death of a user?

webinar photoKeeping up with the employment law changes under the Biden Administration can be a challenge. Members of Henderson, Franklin, Starnes & Holt, P.A. and Marks Gray, P.A.’s legal teams will host a virtual one-hour session to help business owners, human resource professionals, and in-house counsel understand what these changes mean for employers now, and how to prepare for what might be on the horizon. Click here to download the program brochure.

Program Overview

Guest speaker Giselle Carson, an immigration and compliance attorney with the Marks Gray law firm in Jacksonville, will kick-off the session. She will provide an update on H1B caps, travel bans and consulate processing, as well as I-9 flexibility.

Next, Employee Benefits Attorney David Ledermann will provide an overview on COBRA changes. These include the new federal COBRA subsidy under the American Rescue Plan Act and related notice requirements, interaction with the extended time periods previously granted relating to the pandemic-related national emergency, potential subsequent availability of special enrollment rights in the Health Insurance Marketplace, and considerations relative to Florida’s mini-COBRA law.

Continue Reading 100 Days In: Update on Biden Employment Policies