There is a significant increase in businesses receiving letters from the Ogden, Utah, office of the Internal Revenue Service (the “IRS”). Whether you are a business owner, member of the c-suite or HR professional, this notice is not a scam and should be taken seriously.

Below is a brief overview to help address this letter and the potential significant penalties.

Typically, the letter states the following:

“Dear [Employer],

We have made a preliminary calculation of the Employer Shared Responsibility Payment (ESRP) that you owe.

Proposed ESRP                    $X,XXX,XXX.XXX …”

When you look at the notice and realize that the amount of the proposed ESRP quite high, questions of “how” and “why” begin to formulate in the midst of unleveled anxiety. In our experience, we have found that the proposed ESRP penalties are a result of filing incorrect or incomplete Form 1094-C (“Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns”) and/or Form 1095-C (“Employer-Provided Health Insurance Offer and Coverage”).

ESRP Summary Table – Minimum Essential Coverage

Continue Reading Addressing Employer Shared Responsibility Payment Penalties under the Affordable Care Act

Henderson Franklin’s Employment Law and Workers’ Compensation teams invite business owners, HR professionals, in-house counsel and those wanting to stay up-to-date on issues impacting the workplace to attend the 28th Annual HR Law & Solutions Seminar on Thursday, March 26, 2020, at the Marriott Sanibel Harbour Resort & Spa in Fort Myers, Florida. For more details, please click here to view or download the seminar brochure.

The day will kick-off with registration and a continental breakfast at 7:15 a.m. sponsored by Sanibel Captiva Community Bank. After the morning session, attendees will enjoy a plated lunch, sponsored by BKS-Partners, and conclude around 3:00 pm after an incredible inspiring session delivered by former US Black Hawk Helicopter Pilot, Elizabeth McCormick, sponsored by Contemporary Business Resources. Topics and speakers include:

A Day in the Life: Practical Tips for Today’s Employers

Continue Reading Registration for Henderson Franklin’s 28th Annual HR Law & Solutions Seminar is Open

Growing companies face all kinds of challenges. From financing to staffing, growth takes effort and attention. Among the many things that both drive growth and need this attention is the company’s intellectual property (“IP”). What follows are a few thoughts about some IP-related issues expanding businesses should keep in mind.

Button Up Protection

As businesses grow they must review their IP assets to ensure they are protected, especially the ones that are driving growth. These assets might include trademarks for new product names or brand extensions, taglines and logos, as well as patents for new technologies. Sometimes growth happens quickly and a business does not want to leave important assets unprotected.

Continue Reading Growing Pains: Intellectual Property Challenges for Expanding Businesses

The past ten years have seen amazing advances in technology and the next ten promise even more. How has the law kept up to ensure intellectual property rights are adequately protected and what are some major driving forces that will shape IP Law over the next decade.

2010-2020

  1. Globalization. With the rise of e-commerce and the Internet, falling borders and widening markets, businesses are now almost instantly global. No matter where a business is located, it must think beyond its borders and where its customers are and must take steps to protect their intellectual property across national boundaries. While only a select few businesses needed to worry about global IP protection during the 2000s, by 2020 the issue has become far more generally applicable. This has required businesses and their IP counsel to consider global issues at all phases of IP development and to devise appropriate global protection strategies.
  2. The Leahy-Smith America Invents Act (AIA). This 2011 overhaul to the United States Patent Act altered the long-standing US rule that the “first to invent” had superior rights to a “first to file” rule. This significant change brought the US patent system in step with the majority global rule. The AIA implemented other changes in the patent system, but the “first to file” change was most significant and just one of several that updated an antiquated statutory regime.
  3. IP as a Business Asset. For decades, the value of a business was primarily represented by its tangible assets — property, equipment, inventories, etc. This has changed, however, and intangible assets, specifically intellectual property assets, now account for significant portions of business valuation. Indeed, according to the IP-oriented merchant bank Ocean Tomo over 84% of the value of the S&P 500 in 2015 was represented by intangible assets. Further, the USPTO has reported that in 2014, “IP intensive industries” accounted for approximately one third of US GDP. With intellectual property becoming such a major component of the value of a business and such a significant element in our national economy during the past decade, businesses have had to adapt and become much more proactive to protect those assets.
  4. Alice. In Alice Corporation v. CLS Bank International, the Supreme Court ruled that merely applying an abstract idea on a computer is not patent eligible. What this effectively meant was that computer software programs that simply took abstract ideas—like hedging currencies—and implemented those ideas electronically could not be protected by the patent laws. This led to invalidation of a significant number of software patents and made it extremely difficult for software designers to patent their software. Designers had to react by resulting to different means to protect their inventions. While very few software patents have been issued since Alice, courts are beginning to interpret the decision in ways that pave the way for at least some wider availability of patent protection for software.

Continue Reading Looking Back, Looking Forward: Significant Intellectual Property Developments and Trends for the Future

Under the Lanham Act, (15 U.S.C. 1051, et seq.), a trademark owner can bring suit against any entity that infringes its trademark.

Among the recoverable damages are disgorgement of the infringer’s profits from the sale of infringing goods, 15 U.S.C. 1117(a). However, where the infringement constitutes counterfeiting, those damages can be trebled or the trademark owner can elect to recover statutory damages, amounting to potentially $2 million per mark infringed, 15 U.S.C. 1117(b), 1117(c).

The Sale of Counterfeit Goods

Continue Reading Holding Landlords Liable for Trademark Infringement by Tenant

New DOL Rule Increases Salary Basis Threshold

Employers may need to give some exempt employees a raise come 2020. This week, the federal Department of Labor (“DOL”) released its new Final Rule on the minimum salary an employer needs to pay an exempt employee in order to satisfy the “salary basis” test.

Currently, an employer must pay an exempt employee a salary of at least $455 per week ($23,660 annually).  Effective January 1, 2020, that level increases to $684 per week ($35,568 annually). That’s nearly a $12,000 increase, which would be about a 50% raise for an exempt employee who current makes the minimum threshold salary.

The new Rule, however, pales in comparison to what the DOL proposed, and was about to implement in 2016, before a court put a hold on that Rule (the DOL ultimately withdrew the Rule).  That Rule sought to more than double the current threshold, and increase the minimum salary to $47,476.

Critics (mostly on the employer side) argued that the rationale used to justify such a significant jump in the salary basis was flawed, and that its effect would be to hurt businesses and employees alike.  The new Rule took most of those concerns into account, inasmuch as there is much more consensus among business and employee advocates as to the propriety of the new Rule. To that end, although there is certainly a possibility that a court could hold up implementation of the Rule, there is less chance that an advocacy group will seek to stop this Rule.

What Should Employers Do Now?

Continue Reading Show Me The Money: Some Exempt Employees Due a Raise in 2020

Trademark filings are public records. The United States Patent and Trademark Office database contains names and addresses of owners of trademark applications and registrations. A disturbing trend that has reached epidemic proportion is the use of that data by third parties trying to scam trademark owners. If you own a trademark registration and receive any correspondence from any entity other than the attorney you used to obtain that registration, be very leery before responding.

The Scammers

Trademark owners are receiving Notices, Reminders and Warnings from such ominously named entities as “The Patent and Trademark Bureau,” “Trademark Compliance Center,” “Brand Registration Office,” “International Patent and Trademark Office,” “Trademark Renewal Service,” the “U.S. Trademark Compliance Office,” “Register of International Patents and Trademarks,” and the “Worldwide Database of Trademarks and Patents,” to name a few.

The mailings look “official” (as is pictured here) and often contain language from and citations to various statutes and rules. In addition, the return addresses are made to look legitimate — 2200 Pennsylvania Ave., Washington, D.C., 500 Montgomery Street, Alexandria, VA; 15 Rue De Tunnel, Geneva, Switzerland, etc. However, they are all bogus. In fact, the USPTO has cultivated and published a list of over fifty such sham entities on its website and the number keeps growing.

The Scams

There are a few common scams. First, many of the letters request payment of fees for registration of a trademark in some directory or publication in some, usually, international journal. However, there are no fees for publication in the USPTO and no “directories” where registration or inclusion of a trademark is required. At best, a trademark might be included in some private journal or database but this inclusion will confer no rights on the trademark owner in the United States or in any other country. It is a money grab targeted to the gullible. Fees for this service range from several hundred to over two thousand dollars.

Some entities will offer services in connection with recording a trademark registration with U.S. Customs, monitoring new trademark filings for new applications similar to yours or monitoring registration of new domain names containing your trademark. While there are legitimate businesses who offer services like these, most of the mailings received by trademark owners touting such services are scams and should be avoided. Anyone interested in receiving monitoring services like these should do due diligence into the entity offering the service.

Another common scam relates to trademark renewal and maintenance filings. True, a trademark owner is required to make certain filings between the fifth and sixth years of registration to keep a registration active and upon the tenth anniversary to renew a registration. However, trademark scammers regularly falsify the dates filings are due and make contact sometimes two-plus years before any actual due date and alarm trademark owners with threats that a registration will be cancelled if they do not act. An unsuspecting trademark owner could then end up paying “renewal fees” to some entity who absconds with that payment, leaving the trademark registration to lapse and abandon or the owner with having to pay legitimate fees at the time a renewal or maintenance filing is due.

In addition, the Asian domain scam provides yet another chance to swindle a trademark owner. In this scam, a trademark owner receives an unsolicited alert from a domain Registrar located in Asia who indicates some company is trying to register a domain containing your trademark. The Registrar indicates you could consent to that registration and give up your trademark rights in Asia, or buy the domain yourself, as well as the same domain in other Asian countries, all through that Registrar. The scam here is that there is almost never another entity trying to register any domain and the price paid to register the domain through the solicitor is usually several times higher than registering directly.

While there are other scams, these are some of the most common. A final note of caution: regardless of the exact nature of the scam, these scammers usually request payment by wire transfer.  Doing so will expose your banking information to who knows what kinds of persons and entities. So for this reason alone, before responding to anything seeking payment, a trademark owner must be cautious.

Takeaway

When it comes to correspondence relating to your trademark registrations, the best practice is to rely only on correspondence from the attorney you used to obtain the trademark registration in the first place. Any official correspondence will go through that counsel of record. Scammers cull address information from publicly available data and prey on gullibility. If you have any questions about legitimacy of any trademark related correspondence, check with your attorney. If you obtained your registration on your own and are uncertain about any correspondence, feel free to contact one of our Intellectual Property attorneys for insight. I may be reached at mark.nieds@henlaw.com or by phone at 239-344-1153.

 

The Americans with Disabilities Act (the “ADA”) has been a tremendous source of litigation since its passage nearly thirty years ago. The ADA was originally put in motion to provide equal access to physical locations and services. It generally requires establishments to provide people with disabilities easy access to a business. But in 2016, the ADA began to include websites. The ultimate goal of the ADA is to eliminate exclusivity and offer an equal experience to all people. Thus, the logic goes, businesses should be inviting to everybody via physical location and website.

Over the past year, plaintiff attorneys have developed a cottage industry by filing thousands of lawsuits alleging that company websites are not accessible to the blind or visually impaired. From 2017-18, lawsuits targeting website compliance have increased by 177%, with more than 2,000 filed in 2018. Often times the same disabled individual (with the same attorney) will file these claims. They seek an injunction to make the company’s website ADA accessible and attorneys’ fees. A nominal settlement will quickly follow (typically a few thousand dollars) with the vast majority of this going to the attorney. Florida is a breeding ground for this drive-by litigation, and it is frustrating the federal courts. See Price v. Escalante – Black Diamond Golf Club LLC, No. 5:19-CV-22-OC-30PRL, 2019 WL 1905865, at *1 (M.D. Fla. Apr. 29, 2019).

Lack of Guidance

Continue Reading The Latest ADA Shakedown: Website Compliance

It is not uncommon to see your fellow Florida motorists, head tilted downward and not on the road, utilizing their mobile device to text while their vehicle is in motion. Florida is now catching up to the rest of the country in one important area:  giving teeth to our texting while driving law. Enacted in 2013, Florida Statute 316.305, known as the “Florida Ban on Texting While Driving Law”, is intended to improve roadway safety by preventing crashes related to the act of text messaging.

Secondary Offense Not Enough

This statute, however, only authorized law enforcement officers to stop motor vehicles and issue citations as a “secondary” offense to persons who were texting and driving. In other words, police were only able to cite motorists for texting if they were pulled over for other reasons, such as speeding or failure to yield. This law did little to curb accidents caused by “distracted driving”, which were numerous, and often deadly.

Continue Reading Florida Drivers Be Aware: Texting and Driving is a “Primary” Concern

With a ruling that could significantly change the business and regulatory landscape in the medical marijuana field, the Florida First District Court of Appeals has determined that certain provisions of the Florida Medical Marijuana Statute are unconstitutional.

Constitutional and Statutory Conflicts

In January 2017, an amendment to the Florida Constitution went into effect to protect the right to produce, possess and use medical marijuana. Patients that qualified to receive medical marijuana could obtain it from a Medical Marijuana Treatment Center (“MMTC”).

Continue Reading Appeals Court Finds Provisions of Florida Medical Marijuana Statute Unconstitutional