Henderson, Franklin, Starnes & Holt, P.A.

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We are already in February 2021! Can you believe it? Our Tampa Bay Buccaneers were crowned Super Bowl Champs, spring is upon us, yet we are still wearing masks, vaccinations are being provided to Floridians as fast as possible, yet it still looks a lot like 2020 in many ways.

What’s happening in Florida Legislature?

  • New protections for health care providers. A senate committee has successfully cleared legislation on February 10, 2021, that would create COVID-19 liability protections for Florida health care providers. Senate Bill 74 (SB 74) was advanced with a 6-4 vote. The proposal would require plaintiffs to prove a provider acted with “gross negligence or intentional misconduct instead of simple negligence.” Further, the evidentiary standard would also be “clear and convincing evidence” as opposed to the much lower bar of the “greater weight of the evidence.” All in all, the legislation was proposed to provide protections to Florida’s health care industry. Other similar measures are being advanced through the Republican-controlled legislature to extend protections to schools, churches, and businesses.
  • Potential immunity from liability. Senate Bill 72 (SB 72) advanced through the Senate Judiciary and would provide liability protection to businesses to be applied retroactively to a newly filed lawsuit. Plaintiffs would be required to obtain affidavits from Florida physicians attesting that defendants’ acts or omissions caused the damages, injuries or deaths. If businesses have “substantially” complied with government-issued health standards or guidance, the business would be immune from liability. A companion bill, House Bill 7 (HB 7) has advanced through the Florida House of Representatives which would raise the bar for personal injury and wrongful death lawsuits stemming from COVID-19 and provide immunity for businesses and entities that made a “good faith” prevention effort.

What’s the impact on Florida’s economy?

Continue Reading A 360 degree look at COVID-19 in Florida — from the Legislature to the Courts

Product packaging is a critical part of every manufacturer’s operations (and even that of many wholesalers and retailers). A product’s packaging is often the first thing customers see: and first impressions count. That is why, for example, an entirely new discipline – packaging engineering – has grown over the last several decades and why companies like Starbucks® and Apple® work so hard to have every napkin, cup, box and bag uniformly branded.

Yet despite the obvious commercial and marketing importance of product packaging, many companies fail to protect the intellectual property rights embodied in such packaging – rights which can often be secured under patent, copyright and/or trademark law.

Product packaging is one of those often overlooked areas of intellectual property. Manufacturing clients rightly focus on protecting their products but sometimes forget that consumers usually see their packaging first. Failing to protect such packaging can be a major misstep since competitors often infringe upon both packaging as well as products.

Design Patent

A design patent protects the ornamental design (i.e., the “look and feel”) of an invention. In other words, design patents protect the way an invention (including, potentially, product packaging) looks. When most people think about patents, they think about a “utility patent” – something which protects utilitarian or functional aspects of an invention. But a “design patent” is different – it protects the appearance of an invention. That’s often perfect for packaging. In general, that means that new, useful and non-obvious packaging designs can potentially be protected.

Major companies have been using design patents to protect product packaging for over a century. For example, U.S. D48160 is a design patent issued in 1915 over what we now know as the Coca-Cola® bottle. More recent examples include everything from Chobani’s design patent covering product packaging for yogurt boxes (U.S. D828766S1) and Kraft’s design patent covering a salad dressing bottle (U.S. D659000S1) to Starbucks’ design patents for a coffee cup (U.S. D529762S1) and a coffee cup lid (U.S. D516424).

How should companies decide whether or not to consider seeking design patent rights?

Continue Reading Copyright and patent protection apply to product packaging, too

As we happily turn the calendar to January 2021, many start gathering receipts and documents to prepare for tax season. If you serve or have been recently appointed as a Personal Representative, Executor or Administrator, there are some important income tax issues you should be aware of to avoid legal action from the Internal Revenue Service (“IRS”), or lawsuits from the decedent’s beneficiaries. Below are some answers to a few frequently asked questions concerning estate tax filings:

Q: When is a decedent’s final tax return due?

When someone dies, their tax year ends as of the date of death. The Personal Representative (Executor or Administrator) is responsible for filing the final federal and state returns and ensuring that any tax due is paid. These returns are due April 15 of the year after the date of death. If someone dies before filing a return for the prior year, the Personal Representative must make sure that the return is filed and any taxes paid. The IRS is one creditor you don’t want to mess with, as they can hold a Personal Representative personally liable for unpaid taxes.

Q: What is a “Step-Up in Basis”?

Continue Reading 5 tax tips for those dealing with estates

Franchise and multilevel marketing (MLM) businesses are often attractive because they offer people the chance to start a small business with a well-known brand and an established business model. However, they present unique estate planning challenges than other types of small businesses because the rights and obligations of franchisees and multilevel marketers are spelled out in contractual agreements.

What Is a Franchise?

When you purchase a franchise, you are purchasing a unit from a company that is already established in a particular industry. As a franchisee, you are entitled to use the company’s business model, advertising resources, and products, and receive training and ongoing support from the company to enhance your chances for success. In return, you must adhere to specified business practices and standards. The cost of purchasing the franchise can be quite high, and there are typically also ongoing fees for support and royalty payments for the use of the brand name.

What Is an MLM Business?

In an MLM business, you benefit from having established products to sell and the use of the company’s advertising materials to promote them. You earn money by selling the company’s products and recruiting other sellers whose sales provide you with additional income. MLM businesses usually offer flexible schedules and do not require substantial initial costs, though the company may require a minimum monthly purchase of products. Those who have a large network of friends and acquaintances and are friendly and extroverted are more likely to succeed, as MLM businesses involve presentations of products to generate sales.

How Do These Business Types Impact My Estate Planning?

Continue Reading Estate Planning for Franchise and Multilevel Marketing Business Owners

For many litigators, the best way to start a new year is with a new summary judgment standard! On December 31, 2020, the Florida Supreme Court issued an opinion, adopting the federal court’s summary judgment standard as articulated by the United States Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). This has been a long time coming for businesses as the federal standard may decrease legal expenses by expediting civil lawsuits and avoiding unnecessary trials. This decision may also alleviate the burden on Florida’s courts by allowing more cases to be resolved at the summary judgment phase.

Former Summary Judgment Standard

Summary judgment in Florida is governed by Rule 1.510. In pertinent part, Rule 1.510 previously provided the “summary judgment evidence on file must show there is no genuine issue as to any material fact.” Florida courts have taken a broad approach in interpreting “no genuine issue” by prohibiting the granting of summary judgment where there is the existence of any evidence of an issue of fact. In other words, if there was the “slightest doubt” raised, Florida courts would not grant summary judgment.

Federal Summary Judgment Standard

Continue Reading New Florida Summary Judgment Standard Could Lessen Legal Expenses and Judicial Backlog

Guest post by Madison Tanner, Esq.

It is the most wonderful time of the year! Bonus season. Jokes aside, it is the season of giving. We have all been through so much this year: a pandemic, a contentious election, and virtual meetings replacing human interaction. The challenges we faced in 2020 resulted in the closure of local restaurants, reduced hours at small boutiques, and limitation of leisurely activities outside of the home. Many of us (particularly the last minute shoppers like me) are fleeing to our favorite small businesses to purchase a gift certificate for a loved one while simultaneously supporting the “shop small” movement. Small businesses graciously save the (holi)day with their festive gift certificates and I-O-U services. Thanks to these establishments, we can purchase an experience for our loved ones ranging from a facial or massage to a meal at their ideal lunch spot. The begging question is: how long does one have to use that gift certificate? The answer: in Florida, it should not expire.

Florida Law

Florida Statute § 501.95 governs on the issue. The statute, beloved by the consumer and despised by the small business owner, was first enacted in 2007 in an effort to regulate trade and protect consumers. Pursuant to § 501.95(2)(a):

“a gift certificate purchased or credit memo issued in this state may not have an expiration date, expiration period, or any type of postsale charge or fee imposed on the gift certificate or credit memo….”

Exceptions to the Rule

Continue Reading Small Businesses Beware and Consumers Rejoice: Gift Certificates Cannot Expire

In a perfect world, as 2020 comes to a welcomed end by so many, all the vestiges of COVID-19 would also leave with this largely forgettable year. Not to be.

Though there is some good news with vaccinations already in use and perhaps optimism that this pandemic can be controlled; the damage that was caused in 2020 by government shutdowns, capacity limits in businesses, consumer uncertainty, and health risks has led to a large uptick in the court system dealing with business disruption claims due to this historic pandemic. Below, is some of the latest.

Sport’s bar business interruption lawsuit dismissed

Right here in Florida, a Federal Judge dismissed a sports bar’s lawsuit seeking coverage for lost business due to state-ordered restrictions amidst the COVID-19 pandemic. As we have seen in other similar decisions, the court found that the bar did not experience a “direct physical loss.”Continue Reading As 2020 comes to a close, COVID-19 litigation is not slowing down

In today’s internet-driven economy, businesses recognize the importance of using digital content to reach consumers. However, this often creates unique intellectual property issues – including potential copyright infringement questions.

Photographs and videos are amongst the most effective digital content – garnering significantly more likes, comments and click-thoughts on social media than text-based posts alone. While the use of photographs and videos presents an enormous marketing advantage, it also raises additional potential for legal exposure where such photographs or videos are not carefully sourced.

Protections under Copyright Law

Copyright law protects the creative expression of an idea – be it words on a page, notes in a song, brushstrokes on a canvas or the various compositional elements in a photograph or video: such as lighting, shadow, camera angle, etc. Such copyright protection can extend to photographs of products, places and people. While you cannot “copyright” a person, for example, copyright protection could extend to a particular photograph of a person.

Copyright protection over photographs has been recognized in the U.S. since the late 1800s – and therein lies the challenge. Often we are left trying to fit 21st century issues into 19th century legal frameworks. Sometimes, this results in illogical outcomes.Continue Reading Copyright Issues Using Photographs and Videos on Websites and Social Media

In the ever-emerging business interruption coverage world, Superior Court Judge Orlando F. Hudson Jr., a North Carolina Judge, ruled that Cincinnati Insurance Company owes a group of restaurants coverage for losses which flowed from a North Carolina mandated COVID-19 shutdown, in the matter of North State Deli LLC et al. v. The Cincinnati Insurance Co., 20-CVS-02569, in the State of North Carolina General Court of Justice for the County of Durham. This ruling appears to be the first decision to hold that a government-ordered shutdown to contain the virus caused a “physical loss.”

In previous blog posts (Recent COVID-19 Business Interruption Decision is a Win for Insurers and What You Need to Know About COVID-19 and Business Interruption Insurance Coverage), we set forth that these cases are being fought on the issue of whether there is a “physical loss” which would trigger coverage under many business policies. Judge Hudson Jr. stated that the term direct physical loss includes an:

inability to utilize…something in the real, material or bodily world, resulting from a given cause.”

In sum, physical damage or alteration is not needed to trigger the coverage.Continue Reading Trend or Outlier: North Carolina Restaurants, the First to Get Physical Loss COVID-19 Coverage

On July 1, 2020, an Ingham Michigan Judge dismissed a claim of first impression, ruling in favor of an insurer’s decision to deny business interruption coverage due to the finding that the insured business owner did not suffer a direct physical loss under the policy.

Similar to many lawsuits on this uniquely 2020 issue, the case (Gavrilides Management Company v. Michigan Insurance Company) focused on whether there was a “direct physical loss of or damage to the insured’s property” which would trigger the coverage for business interruption. This particular claim centered on a business owners’ two restaurants in Lansing Michigan in the amount of $650,000.

The insurer argued that the business interruption coverage kicks in by an occurrence that actually alters or damages the property, which apparently did not occur. The claimant argued that non-destructive losses are also covered by the policy.
Continue Reading Recent COVID-19 Business Interruption Decision is a Win for Insurers