◊ VRP Law-The Intellectual Property and Employment Law Blog.
Provided by Vihar R. Patel and Sponsored by Enterprise Law Group, LLPArchive for October, 2009
Investigating and responding to Employment Retaliation Claims!
Investigating and responding to allegations of retaliation by employees or former employees often makes managers, supervisors and officers angry, frustrated or upset. However, these natural and human feelings about a potentially false retaliation claim can be used against employers in a retaliation lawsuit.
A manager’s hurt feelings, anger, upset demeanor, unhappiness or defensiveness can be used as evidence of retaliatory animus. See. Woods v. Washtenaw Hills Manor Inc., Case No. 07-cv-15420, 2009 U.S. Dist. Lexis 22358, *47 (E.D. Mich. 2009); Anderson v. Royal Crest Dairy Inc., 281 F. Supp. 2d 1242, 1250 (D. Colo. 2003); Kinzel v. Discovery Drilling, Inc., 93 P.3d 427, 436 (Ak. 2004); Miller v. National Life Insurance Co., Case No. 00364, 2009 U.S. Dist. Lexis 10626, *27 (D. Conn. 2009).
Making sure that officers, managers, supervisors, and employees are trained and properly investigating claims of retaliation is crucial in avoiding liability for employers. At the same time, mechanical or uncompassionate reactions often make the employer less credible during EEOC or IDHR investigations, or a lawsuit.
Understanding the tightrope that employers have to walk in this regard can be the difference between winning or losing a dispositive motion or a trial. If you have any concerns or questions about implementing a proper training procedure or defending against retaliation claims, then feel free to contact us.
Single Source, Related Companies and Section 2 (d) rejections for Trademarks!
The USPTO will typically issue a section 2 (d) rejection for any mark that is confusingly similar to the mark described in your trademark (“TM”) application. Often times, through a merger, sale, acquisition or reorganizations companies have different names and structures, but maintain a unity of interest in their intellectual property (such as a TM).
However, unless a proper assignment or transfer is recorded with the USPTO, a derivative version of a mark owned by a prior company will be the basis of section 2(d) rejection. Fortunately, the Federal Circuit has stated that if the applicant and the prior company are related companies that qualify as a single source of a good or service, then there is no likelihood of confusing the consumer. In re Wella A.G., 787 F.2d 1549 (Fed. Cir. 1986).
An examiners section 2(d) rejection may be overcome by filing an affidavit from the appropriate owner(s) asserting that the prior company and the applicant are related and share unity of control over their trademarks. Unless there is contradictory evidence, the Examiner will usually accept the affidavit and withdraw the USPTO’s objection to registration of your mark under section 2(d).
Understanding how to properly apply for intellectual property (trademark) rights in the face of a merger, acquisition, sale or reorganization is often crucial to the continued growth of a business enterprise.
