◊ VRP Law-The Intellectual Property and Employment Law Blog.
Provided by Vihar R. Patel and Sponsored by Enterprise Law Group, LLPArchive for April, 2009
Update on COBRA or Continuing Health Insurance
There has been a recent change to how payments are made for continuing health care or COBRA coverage (hereafter “COBRA”) for former employees. As part of the government’s stimulus effort, it will help subsidize the costs of COBRA coverage for former employees.
Employers can receive thirty-five (35%) percent of the premiums for the cost of COBRA coverage from former employees. However, Employers are required to pay the full premium payments upfront. Employers will be responsible for paying sixty-five (65%) percent of the premiums for COBRA coverage, but Employers will be entitled to a tax credit for the difference as an offset against their payroll tax liabilities.
Employers are required to provide notices to employees that were involuntarily terminated between September 1, 2008 and February 17, 2009. Employers are required to send notice of the option to elect COBRA coverage within 60 days of February 17, 2009. This notice must also be provided to individuals that previously opted out of non-subsidized COBRA coverage.
There are additional notice requirements that the Federal Department of Labor is promulgating and you may find some of them at its website. However, as of February 17, 2009, Employers are required to give notice to former employees of the option to elect subsidized COBRA coverage. If the employee was terminated for “gross misconduct”, then the notice requirement is waived. However, it is not clear what actions will amount to “gross misconduct.”
Copyright Law, Open Source Licenses and Covenants or Conditions?
Many individuals or entities will provide copyrighted material to the public and attempt to restrict the public’s ability to use the copyrighted materials for personal gain. A common example is the software industry’s use of open source materials.
Many software developers or programmers will provide their code to the public, but attempt to limit another’s ability to copyright anything that is created from their software code. In a recent case, Jacobsen v. Katzer and Kamind Associates Inc., the Federal Circuit upheld the ability of a copyright owner to publicly disseminate its code, grant a non-exclusive license, and still sue for copyright infringement.
How? Well, a Copyright Owner can put conditions on the non-exclusive license that restrict the public’s use of the software code. If the conditions are violated, then the copyright owner can sue for both copyright infringement and breach of contract for violating the covenants in the license agreement.
The Federal Circuit’s reasoning and ruling raises concerns for individuals and employers who may believe that use of open source materials or items in the public domain are free from copyright infringement claims. Having a good policy and practice of reviewing the conditions of use for any open source or publicly available materials is now a crucial business practice for any technology driven company.
To find out more about the opinion see: Jacobsen v. Katzer and Kamind Associates, Inc. open-source-license-agreements1
New Amendments to USPTO Trademark Filing Requirements
The United States Patent and Trademark Office (USPTO) passed several new rules that became effective in January 2009 relating to filing for trademark or servicemark rights in the United States (U.S.). The amended rules will impact how trademark attorneys may apply for protection of marks used by individuals, entrepreneurs, small business owners, partnerships, joint ventures, foreign and domestic corporations.
Some examples of the requirements of the new rules are illustrated below:
1) All international applications filed under section 1 or 44 of the Trademark Act must be written in English;
2) Domestic Partnerships filing for trademark rights must have the name and citizenship of all general partners;
3) Domestic Joint Ventures filing for trademark rights must have the name and citizenship of all active members of the Joint Venture;
4) If the mark includes a foreign word, then the application must have a English translation for the foreign word; and
5) The application no longer requires a verified statement that the applicant has “adopted and is using the mark shown in the drawing.” Instead a statement that “the mark is in use in commerce” will be sufficient.
There are several other amendments that may be found here: http-wwwagstateilus-pressroom-2009_03-20090305
Should you have any concerns or questions regarding the amendments or filing for trademark or servicemark rights in the U.S., feel free to contact us.
New I-9 Forms (Authorization to Work Status)-Are you in Compliance?
On April 3, 2009, the U.S. Citizenship and Immigration Services (“USCIS”) will begin using a revised version of the I-9 Form to verify identity and authorization to work in the United States. Employers are required to complete the new I-9 Form for each new employee hired in the United States on or after April 3, 2009. Additionally, the new rule prevents employees from using expired identification documents to verify their work eligibility starting April 3, 2009.
The crackdown on immigration and the Form I-9 procedures have caused a dilemma in the workplace. On one hand, there are stiff penalties and even criminal prosecution for knowingly hiring illegal immigrants. On the other hand, improper questioning of job-seekers can lead to charges of discrimination. A quick checklist can help with your immigration procedures.
1. Ask each candidate if he/she is authorized to work in the United States. However, be careful not to ask about place of birth or national origin. These types of questions can be viewed as discriminatory if you decide not to hire the candidate.
2. Have the new hire complete the attached I-9 Form within 3 days of starting work.
3. Check to make certain that the identity and authorization documents are acceptable and appear genuine.
4. If you need to make corrections, complete another I-9 Form without altering the existing form.
The new I-9 Form is attached to this email and may also be found on http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf
