Understand Your Rights. Solve Your Legal Problems
In 1789 when the US Constitution was ratified, the word privacy was nowhere to be found. Rather, it was baked into the Third, Fourth, Fifth Amendments’ limitations on governmental intrusions into personal territorial, bodily, and communication privacy. In 1890, Samuel Warren and Louis Brandeis published “The Right to Privacy” in the Harvard Law Review, describing privacy as “the right to be let alone”. Elsewhere in the world, in 1948 the General Assembly of the United Nations proclaimed privacy as a human right, declaring: “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence”.
In contrast, the 1972 amendment to the California Constitution added an explicit guarantee of the right to privacy, stating: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy”.
Regardless of the historical or societal origins, it is clear that a person’s right to privacy is universally viewed as a fundamental individual right and an essential element of personal freedom. In the New Millennium, the concept of personal privacy has expanded past unlawful governmental intrusions and grown more sensitive in this digital age. Technological advances have produced exponential growth in the volume and variety of personal data being generated, collected, stored, and analysed, which presents both promise and potential peril. It is true that the ability to harness and use data in positive ways drives innovation and brings beneficial technologies to society, but it also has created risk to privacy and freedom.
Regardless of the historical or societal origins, it is clear that a person’s right to privacy is universally viewed as a fundamental individual right and an essential element of personal freedom.
The unauthorised disclosure of personal information and loss of privacy can have devastating impacts ranging from financial fraud, identity theft, and unnecessary costs in personal time and finances to destruction of property, harassment, reputational damage, emotional distress, and physical harm. Therefore, a critical question is: can privacy laws coexist with enterprise growth innovation?
In the US, privacy laws have developed sector-specifically, with notable examples including the 1978 Family Educational Rights and Privacy Act (FERPA) protecting student education records; the 1996 Health Insurance Portability and Accountability Act (HIPAA) governing personal healthcare date (as augmented by the 1999 HIPAA Privacy Rule, the 2003 HIPAA Security Rule, and the 2010 Health Information Technology for Economic and Clinical Health Act (HITECH)), the 1998 Children’s Online Privacy Protection Act (COPPA) concerning children’s online privacy; and the 1999 Gramm-Leach-Bliley Act (GLBA) governing personal information as used by financial institutions. To date, however, there is no comprehensive federal data privacy or protection law.
The European Union (EU) led the world in 2018 with its General Data Protection regulation 2016/679 (“GDPR”), setting up a legal privacy framework for all 27 EU nations and countries in the European Economic Area (“EEA”). GDPR is now being modelled by some US States, such as California, Colorado, and to a lesser degree, Virginia; the first three US States to enact comprehensive personal data protection legislation. This article is meant to describe these laws’ statutory constructs in broad terms and examine differences, commonalities, and the protection gaps these laws create for US consumers and the confusion they place on business compliance efforts.
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The enacted States’ data privacy and protection laws (CA, CO, VA) all set a two-tiered jurisdictional threshold model for assessing applicability of these laws. In the first instance, the laws apply to all businesses that collect, process, or store personal information of each States’ residents. eCommerce has transformed consumer data into a core asset of all enterprises; big, small or in between.
Obviously this applicability standard makes such laws’ applicability very broad. However, to lessen the burdens on small business, the laws become more tailored and set screening mechanisms by judging enterprises by annual worldwide gross revenues ($25 million in CA, no revenue thresholds in CO or VA); or by volume of personal information (50,000 records in CA (as counted by residential consumers, households, or devices) and 100,000 records in CO and VA); or by a percentage of worldwide annual revenue derived from selling residents’ personal information (50% in CA, at least 25,000 records for CO residents, and 50% in VA involving at least 25,000 VA residents).
Generally, these States’ consumer privacy laws grant exclusions for personal data already protected by HIPAA, HITECH, GLBA, etc. and exempts certain categories of personal information such as public records and aggregated or deidentified personal data.
The enacted US States’ data protection laws all include key definitions and assign meanings to the backbone words and terms of consumer data protection legislation. These always include: “Consumer”, being the residents of the enacting State; “Covered Entity” or similar scoping term that sets the thresholds for the law’s reach; “Personal Data” or sometimes “Personal Information” which is generally described as information that is linked or reasonably linkable to an identified individual, and “Sensitive Personal Information” which adds special protections for categories of personal information such as biometric and genetic data, racial or ethnic origin, religious beliefs, mental or physical health conditions, sexual orientation and, sometimes, citizenship status. Each definitional difference matters because enterprises seeking to comply must first know each consumer’s home state and then also assess whether their data is included within such definitions.
The enacted US States’ data protection laws all include key definitions and assign meanings to the backbone words and terms of consumer data protection legislation.
These laws give their residents certain rights to control their personal information, including:
These consumer rights require enterprises to set up one (CO and VA) or two (CA) methods for making consumer requests, and duties to respond to such requests and implement processes to do so fairly, without charge or discrimination, and on a timely basis, which is usually 45 days at the most. Some States, such as Colorado, also require the business to have an internal appeal process for requests they refuse to process. Also, a Consumer’s exercise of these rights cannot face obstacles such as added fees, new account creation, or discrimination in pricing or service in the future.
Countervailing consumers’ data rights are controllers and processors duties. Broadly speaking, these duties include:
In addition to having the means to respond to consumer requests, businesses controlling personal information must also give consumers an accessible, clear, and meaningful privacy notice that includes a laundry list of required disclosures, such as the categories of personal data collected or processed and by whom; the reasons these categories of personal data are processed; Instructions on how consumers can exercise their data rights; the personal data that is shared, with whom, and why; and conspicuous notices about its “sale.” On 1 January, 2023 (the effective date for CO, VA, and the California Privacy Rights Act (“CPRA”)), enterprises must conduct and document annual “data protection assessments” to measure whether their data processing activities create a “heightened risk of harm” to consumers.
Each of CA, CO, and VA’s regulations impose a reasonable data security requirement for enterprises to establish, implement and maintain reasonable administrative, technical and physical data security practices to protect the confidentiality, integrity, and accessibility of personal data. In CA, under the CPRA, annual cybersecurity audits will also soon be required.
Without a private right of action (only available in California on a limited basis), these laws are to be enforced by each States’ Attorneys General statutorily empowered to write regulations and impose civil penalties. Said penalties are: $2,500 per violation ($7,500 for intentional or willful violations) in CA; $20,000 per violation in CO, and $7,500 per violation in VA.
As CA, CO, and VA’s consumer privacy laws illustrate, legislators view privacy as an individual fundamental right and an essential element of personal freedom worthy of protection. With 10 or more other States considering similar legislative protections for their citizens, it is obvious that privacy laws will soon dominant enterprise use of personal information. That said, the current US approach stands in stark contrast to GDPR, produces an expensive compliance matrix for all enterprises seeking to be good data stewards, creates an unlevel playing field for enterprises that can afford compliance and those that cannot, and differentiates residents with fundamental privacy rights and those without them.
Rita W Garry, Shareholder
Robbins, Solomon & Patt
Address: 180 N. La Salle Street, Suite 3300, Chicago, Illinois 60601
Tel: 312 456 0285
Email: rgarry@rsplaw.com
Website: rsplaw.com
RSP is an Illinois-based law firm that has represented clients across the Chicagoland and Midwest area for over 50 years, building strong relationships with small- and medium-sized businesses across a broad range of industries.
Rita W Garry is a seasoned corporate, transactional and data privacy attorney. Among her other work, she guides enterprise clients, both nationally and internationally, in designing and operationalising data management and protection law compliance programmes.
According to Modern Attorney, about 400,000 personal injury claims are filed each year. A majority of these are settled out of court, but a small number make their way to trial. If you are a personal injury attorney, it's important to make sure your client leaves the court properly compensated.
Regardless of the number of personal injury cases you take, expect a few to enter into trial. This often happens if the other party has a solid defence. To prepare you for this eventuality, you will need to focus on a few key skills that guarantee victory. Here are four of the most critical skills that will determine the outcome of your personal injury case:
Much of what you do as an attorney is to examine facts and evidence. Your client may not provide the full story of what really happened on the day they got injured, so you might as well investigate on your own. Building a solid case will depend on how well you connect different facts together and disprove any claims that the other side may lob against you. It also pays to interview people who were present at the time and place of the personal injury. It’s best to assume that you don’t have all the facts with you, so let your curiosity lead you to the right information.
To be a good personal injury lawyer, you will need to take a look at medical records and previous court decisions to support your case. It’s also important to know how certain injuries could lead to long-term hardship for your client. Try to get expert opinions and interview your client’s doctor. You can also read medical articles and reports of other similar cases. Taking time to do extensive research helps you find facts that could strengthen your case and maximise your client’s claims.
It takes experience and a good grasp of psychology to present facts in a clear, engaging, and logical manner. Legal experts have done well in helping victims of personal injury take home larger compensation packages through well-structured arguments. It’s also important to come across as empathetic. You will want to build rapport with your clients, and come up with opening and closing statements that favour proper compensation.
Given all the facts you need to build your client’s case, it’s important to stay organised. You have a lot on your plate each day and it’s easy to get lost in the details. Apart from relying on a paralegal for researching and compiling documents, you should also keep track of everything you need for your case using apps such as Evernote or Google Keep. Being tech-savvy goes a long way when it comes to preparing for a major legal battle.
If you haven’t experienced a personal injury case being challenged in court, you will need to prepare for one in case. Get started on honing these skills so you can win your first lawsuit.
While first being criticised for allegedly not having placed the protection of the environment at the heart of their strategic development decisions, companies are now accused of "greenwashing" consumers.
As such, on 28 January 2021, the European Commission published the result of its "Screening of websites for ‘greenwashing'". This screening, or so-called "sweep", was conducted on the grounds that "national consumer protection authorities had reason to believe that in 42% of cases the claims were exaggerated, false or deceptive". The sweep of 344 claims found that:
On its website, the European Commission states that greenwashing refers to "companies giving a false impression of their environmental impact or benefits".
In 2012, the French Agency for Ecological Transition published a specific anti-greenwashing guide. In this guide, greenwashing is defined as:
The report already highlighted the fact that the three main greenwashing mistakes made by companies are to make excessive promises, to lack sufficient scientific data to back up claims and to use confusing visuals which make consumers believe that the product has a positive impact on the environment, even when it does not.
On its website, the European Commission states that greenwashing refers to "companies giving a false impression of their environmental impact or benefits".
More recently, on 29 April 2020, the French professional regulatory authority for advertising (Autorité de Régulation Professionnelle de la Publicité – ARPP) published an update on its recommendations around fair trade, in force since 1 August 2020. This document defines "ecological argument" as "any claim, indication or presentation, in any form whatsoever, used primarily or incidentally, establishing a link between the brands, products, services or actions of an advertiser, and respect for the environment". While the recommendations firstly aim to prevent adverts which denigrate fair trade, they provide a number of rules around loyalty, clarity, truthfulness and proportionality of the messaging when referring to environment-related allegations. There is also a specific set of recommendations relating to logos and labels, raising awareness of the fact that they are also part of a company’s messaging.
In April 2021, the French Government introduced an increase of the existing fine for misleading commercial practices to up to 80% of the false promotional campaign cost when it comes to claims related to the environment. This is the new step of a brass-knuckle approach that was initiated through the so-called "duty of vigilance" law introduced in 2017 which requires large French companies and groups to establish a vigilance plan to prevent and detect violations – in France or abroad, by its subsidiaries and subcontractors – of human rights and the environment and to preserve the health and safety of the employees involved. A number of claims on the grounds of alleged breach of this duty of vigilance law have already been filed before French Courts.
Interestingly, and right before the above fine increase, in March 2021, the French Agency for Ecological Transition published a report designed to demonstrate why the claim "carbon neutral" should be banned and to push for a law to be enacted in this respect.
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At a European level, the new Sustainable Finance Disclosure Regulation (SFDR), which had its first provisions enter into force in March 2021, not only asks funds to disclose what they do to promote environmental, social and sustainability objectives, but to also provide an assessment of the main negative impacts their investments will have on such objectives. This is the way selected by the European legislator to try to find a balance in green marketing initiatives.
In the United States, on 3 March 2021, the SEC’s Division of Examinations announced that one of its annual examination priorities will be to review ESG funds’ advertising.
Client Earth claims to have filed the first such claim in 2019 against BP, and later against Chevron (which was also subject to a claim in the United States in March this year). In the United States, ExxonMobil, Wesson Oils, and Tyson Foods Inc. have each been targeted by greenwashing claims. Still in the United States, it is worth noting that securities litigation has also been launched by investors claiming that they purchased securities in reliance of false green marketing.
It appears that more is to come when looking at Client Earth's "Greenwashing Files" on its website, stating that "there may seem to be nothing wrong with companies highlighting ‘green’ projects. But these ads are a problem where they create a misleading impression of their overall business and its environmental harms". Companies such as Aramco, Chevron, Drax, Equinor, ExxonMobil, Total or Shell are mentioned.
ExxonMobil, Wesson Oils, and Tyson Foods Inc. have each been targeted by greenwashing claims.
To conclude, the law and rules around greenwashing are still works in progress. This consequently makes companies' lives complicated as they are being asked to promote their actions to preserve the environment while, when doing so, they are exposing themselves to criticism. One can realise that we are at a difficult stage where what is expected from companies is not yet regulated and experience shows that this is the recipe for a future wave of litigation.
Sylvie Gallage-Alwis, Partner
Signature Litigation
Address: 49/51 Avenue George V, 75008 Paris
Tel: +33 (0)1 70 75 58 00
Email: sylvie.gallage-alwis@signaturelitigation.com
Signature Litigation is an international law firm founded in 2012. Its senior lawyers bring years worth of experience to tackle multijurisdictional transactions and disputes, specialising in high value commercial litigation and arbitration.
Sylvie Gallage-Alwis became one of the founding partners of Signature Litigation’s Paris office after spending 10 years practicing at a major international law firm. She leads SL’s product liability practice and represents a variety of globally recognized manufacturers across a broad range of industries.
Market intelligence is invaluable to lawyers. They must understand the key trends in the industries they serve if they are to capitalise on the opportunities they offer. For those lawyers in European real estate, what current trends are impacting them that they should know about?
To understand such trends, as well as needs and challenges in European real estate, Drooms conducted research1 among professionals in the industry.
The findings of the study reveal that sustainability is currently the biggest area of development for the sector in Europe, with more than a third (36%) of our respondents identifying sustainably managed assets as the most likely significant future trend. Other key trends identified by respondents included digitisation (26%) and Artificial Intelligence (21%).
Sustainability appears to have climbed the agenda rapidly: a similar survey we conducted last September found that ‘more remote working’ was the biggest theme, also cited by 36%.
‘Sustainable’ investing, which integrates environmental and social goals, has been gathering momentum in the asset management industry for some years. But the growing worldwide consciousness of climate change and social issues accelerated during the pandemic in 2020.
‘Sustainable’ investing, which integrates environmental and social goals, has been gathering momentum in the asset management industry for some years.
In real estate asset management, sustainability is gaining prominence, not least because of the substantial impact buildings have on our environment and society. ESG factors are increasingly seen as an essential element of real estate corporate processes, including legal and tax decision-making.
Full integration of ESG requirements is still some way off being achieved in the real estate industry, however. If it is to be achieved, having the right data management tools will be crucial. Data and its evaluation are the basis for successful ESG management and digitisation is key to implementing it (the use of paperless processes helps the environment too).
Unfortunately, the real estate industry has lagged behind in implementing technology. According to our survey respondents, a lack of knowledge about existing technology (48%) and not understanding the true benefits of it (45%) are identified as the most common reasons for a delay in digitising the real estate industry.
However, the industry is clearly changing: 87% of our respondents say they are very likely in the next two years to raise their technology budget.
In terms of key hurdles, though, nearly all (97%) of our respondents recognise some degree of challenge posed to the workflows of real estate firms by searching, locating, and managing asset-related documentation. Only 3% see it as no challenge at all.
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Virtual data rooms (VDRs) go a long way towards meeting the technological needs of the real estate sector. They were launched around 20 years ago as online versions of the physical spaces in which confidential or sensitive information could be reviewed by authorised parties in a transaction. Today, they offer many new functionalities and provide secure online platforms for accessing confidential documents and managing business processes. They bring efficiency to real estate transactions and even enable management of assets throughout their life cycles.
According to our respondents, VDRs significantly optimise workflows: 16% see an extremely positive impact, 48% a positive impact and 32% a moderately positive one. Real estate professionals can combine all stages of the entire lifecycle asset management process onto a single platform and transparently using Drooms PORTFOLIO. It requires no additional technologies, which makes it a sustainable and highly efficient solution.
There is a pressing need for the real estate industry to digitise its processes further. This will certainly enhance the integration and management of ESG principles, but there are other areas highlighted by our research in which it will be crucial, such as AI, dealing with ‘big data’ and connecting systems and information, such as via application programming interfaces (APIs).
There is a pressing need for the real estate industry to digitise its processes further.
These issues cannot be addressed overnight, but real estate professionals – including lawyers – should take comfort in knowing that important first steps can be made by applying technologies that already exist, such as VDRs, which facilitate the immediate exchange of data and thus efficient workflows - no matter how large a portfolio is and how many thousands of users are involved.
Such tools will be invaluable going forwards to capitalise on all the real estate opportunities that become available, including both asset ownership and debt vehicles.
(1)Source: Survey conducted in March 2021 by Drooms. The panel of 225 real estate professionals covers both fund managers and investors across Europe.
Rosanna Woods, Managing Director UK
Drooms GmbH
Address: 11-12 Tokenhouse Yard, London, EC2R 7AS
Tel: (+44) 207 118 1100
Email: office-uk@drooms.com
Website: www.drooms.com
ESG has emerged as a top priority for governments, corporations, banks, funds and multilaterals. Why is that?
A range of factors, including: accelerating regulation in the EU and the anticipated disclosure requirements in the US; escalating shareholder activism; growing climate-related litigation (including the recent Shell decision in the Netherlands); increasing public commitments by corporations, financial institutions and governments to reduce carbon emissions; intensifying focus on supply chain sustainability and human rights, and surging media focus on all of the above.
These developments are causing major market changes that will produce winners and losers. Those that anticipate and adapt will thrive. Those that cannot will have a difficult time.
How are your clients managing these developments?
Some are managing this brilliantly. They staffed up, fully assessed their operations (including supply chains) and developed a workable approach for collecting ESG-related data. They have also begun developing strategies to adapt to evolving demands on their business, mitigate climate and ESG-related risk and exploit opportunities as they arise.
Others are struggling due to, among other things, inadequate staffing, limited support from senior management, a muddled mandate –and limited oversight– from their boards, and a tendency to react to headlines and “hot” trends rather than proceeding in a measured way based on a coherent strategy.
Those that anticipate and adapt will thrive. Those that cannot will have a difficult time.
March of this year saw the SEC seeking public comment on the development of a new framework for climate and ESG disclosures. How significant is this development for corporations in the US?
The public comments ranged widely. Some called for increased disclosure requirements backed by rigorous enforcement, while others argued for maintaining the status quo. SEC Chairman Gensler has since directed SEC staff to develop climate and ESG disclosure recommendations by fall 2021, building on other recent SEC steps in this area such as creating a Climate and ESG Task Force within the Division of Enforcement.
For issuers, these changes mean heightened focus on existing disclosure based on existing rules (including increased enforcement risk) and the increased likelihood that tougher disclosure rules will come into force over the next 2-3 years.
And what does this mean for the environment?
The immediate impacts will be limited, but increased transparency will impact behaviour at least to some degree. The ability to tell the right story on ESG will increasingly impact corporations’ ability to access capital.
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The SEC has attributed the need for a climate change disclosure update to growing investor and consumer demand for transparency over organisations’ climate change risks. How far has the appetite for this information grown over the past decade?
The demand for transparency has grown exponentially. Consumers increasingly insist on knowing the provenance of the products they purchase, use, and consume, from coffee beans to furniture to engagement rings), while corporate proxy ballots and board member elections are driven more and more by climate and other ESG concerns. SEC Commissioner Allison Herren Lee recently affirmed that because of this demand, the SEC has “begun to take critical steps toward a comprehensive ESG disclosure framework aimed at producing the consistent, comparable, and reliable data that investors need.”
The demand for transparency has grown exponentially.
Do you have any expectations for what the SEC’s proposed framework will look like or how it will affect business in the US?
It is too early to say with any certainty. Everything is on the table, including specific disclosures on:
Given where you sit as head of A&O’s Global Environmental Law Group, how does this all look for companies and financial institutions working across borders?
Across the board, my clients increasingly recognise that their ability to adapt to the challenges posed by climate change, economic inequality, racial injustice and similar issues is essential to their ability to survive, and to thrive. Their main worries are whether the EU, the US and others will harmonise disclosure rules, the potential for conflicting requirements, the availability of reliable, verifiable data, and the costs of compliance. As someone who has advised on ESG for my entire career, well before it was called “ESG,” it is exciting and gratifying to see these issues become a mainstream priority. But we are only in the first inning – we have a long way to go before the game is over.
Ken Rivlin, Partner
Allen & Overy
Address: 1221 Avenue of the Americas, New York, NY 10020
Tel: +1 212 610 6460
Email: ken.rivlin@allenovery.com
Website: allenovery.com
Allen & Overy is an international law firm with 44 worldwide offices and expertise in banking & finance, M&A, funds, litigation and IP, the firm has offered business solutions to its clients for nearly a century. In 2019, Allen & Overy advised on more transactional deals than any other law firm in the world.
Ken Rivlin is a long-term partner at Allen & Overy’s New York office. He founded the firm’s US Environmental Law Group and heads its International Environmental Law Group. He also co-heads the firm’s International Trade and Regulatory Law Group and founded its sanctions practice. He advises clients on a wide range of environmental, ESG and regulatory issues and is a frequent speaker on environmental and regulatory matters.
A brand is often the most valuable asset that a business owns, although it rarely appears on the balance sheet.
A business’s brand is really a trademark (which is identifiable and capable of being registered in respect of named goods or services) combined with the ‘goodwill’ that has been generated by that business. Goodwill is difficult to define, but put simply it is a combination of what a business says about itself and what others say about the business. It can be created by the exclusivity of goods, or how cheap they are, by luxury service or by a ‘no frills’ service. Gucci has goodwill, but so does Primark. In practice, goodwill is a crucial revenue driver because it draws consumers to a business, and this is what lends a brand value.
A brand is also one of only a few assets that can increase in value the longer it is used, provided that its owner invests in protection. Brand protection consists of the varied steps that should be taken to maintain the value of that asset. Practical steps would typically include registering your trademarks and paying subsequent renewal fees, taking action to prevent third parties from using a potentially conflicting trademark or seeking to take advantage of the associated goodwill, and ensuring that your trademarks are used in accordance with the registration. However, a key component of brand protection is ensuring that everyone in a business truly understands the importance of the brand to the success of that business.
A brand is often the most valuable asset that a business owns, although it rarely appears on the balance sheet.
In the UK, a strong legal framework provides for the protection of your brands; it provides for the registration of trademarks and recognises unregistered trademark rights. Unregistered trademark rights are acquired as a result of the use made of it in the marketplace, but they are uncertain in that a business cannot be sure that they exist before it needs to rely on them. If a business wants to assert unregistered rights, perhaps to prevent a third party from using a similar trademark, it must first demonstrate to the satisfaction of a court or tribunal that those rights exist. To do this, a business must present detailed evidence of use of the trademark over a long period of time that demonstrates that it has educated the public to recognise a particular sign as a trademark – as an indicator of the origin of your goods or services.
However, if a trademark is registered, its owner has already satisfied the technical requirements of ownership. A trademark registration is also incredibly powerful; it provides the owner with exclusive rights to use that trademark and the ability to stop third parties from using a conflicting trademark quickly and cost-effectively. Trademark registration provides businesses with the strongest platform from which to protect their brands, and whilst every case is different I very rarely recommend that a business should rely upon unregistered rights.
A trademark is the only form of registrable IP right that can be maintained for an indefinite period of time. Provided that its owner uses the trademark in the right way and pays the renewal fees, that registration will go on serving the business. The protection is not ‘time-limited’ like patents, designs or even copyright.
However, whilst a trademark registration is an effective tool in terms of protecting a brand, a business can boost that effectiveness by choosing a strong trademark. I spend a lot of time working with clients who are looking for new trademarks, whether it is a house mark or a product mark, and my message is always ‘pick a strong mark and you will rarely have to talk to me’! A ‘strong’ trademark is one that has a high level of inherently distinctive character. Avoid using a mark that is not descriptive of the relevant goods or services in any way. One should also avoid invented words, or words that are meaningless. The scope of protection for a distinctive trademark is broader than it is for a less distinct mark, even where there is a registration in place.
Whilst a trademark registration is an effective tool in terms of protecting a brand, a business can boost that effectiveness by choosing a strong trademark.
A Chartered trademark attorney has been specifically trained to a very high standard to work with businesses and organisations to create and protect trademarks and brands and to maintain their value. The life cycle of a brand can include the prosecution of applications to register, contentious proceedings, license agreements, transfer and everything in between. This can be a broad scope of closely inter-related work that requires specialist advice and guidance in order to ensure that the value of the brand is maintained now and in the future. In fact, an important part of our role is to ensure that the protection in place for trademarks and brands is future-proofed insofar as is possible; the applications that a business files today need to be capable of protecting that same business in 5 years’ time and potentially forming the basis of applications filed in other countries.
I also think that there is a real benefit to having an experienced external advisor on your team; a business’s relationship with its brand can be quite emotional – which is a very good thing - and sometimes a third party can act as a practical sounding board. This can be particularly relevant for family-owned businesses.
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Brand abuse can fall into two categories: harm from third parties, and self-inflicted harm.
As a business grows and becomes more successful, it is almost inevitable that competitors will want to take advantage of that success. The competitor may use similar trademarks in an attempt to benefit in the goodwill that another business has created; they may begin selling counterfeit goods either in the UK or abroad; they may file applications to register the same trademark in non-UK countries in an effort to hinder the success of a business.
Brand abuse can also be self-inflicted, believe it or not. For example, if a business allows its brand to become a generic term for goods or services, it may surrender its exclusive rights to use that trademark. Another key challenge is to ensure that the protection for a trademark matches growth, for instance into new commercial or territorial markets.
As a business grows and becomes more successful, it is almost inevitable that competitors will want to take advantage of that success.
As your business grows, it is likely to become more important to rely on your attorney to ensure the safe management of your brand portfolio, to monitor administrative deadlines and third-party activity. In respect to monitoring their competitors’ activity, I strongly recommend that businesses and organisations make sure that their attorneys put in place a ‘watch’ service. This is designed to monitor applications (in specified territories) to register trademarks similar to their own and provides information that allows the business to take proportionate action, as necessary.
It is critical that brand owners have good protection in place (by way of registration wherever possible) which is regularly reviewed to ensure that the protection is in line with your commercial growth. If the range of goods expands, if the business has plans to trade in a new country, if the brand is re-freshed, some consideration and possible additional protection is required.
I usually review my clients’ portfolios at least twice a year to capture any changes that have occurred in a timely manner. This process also includes a review of the manner in which my clients are using their trademarks in order to ensure that the are being used properly.
In 2017, academics at George Washington University published a study suggesting that trademark count rather than patent count is a better indicator of innovation. I remember reading the study and being genuinely delighted, because it represented such a shift in thinking. I think that over the last 5 years there has been a real increase in the understanding of how important a brand is to the success of a business, whereas previously that role had been undervalued.
Also, the scope of what can technically constitute a trademark has broadened considerably. Non-traditional trademarks could now include touch (‘tactile’ or ‘texture’) marks, motion marks and holograms and hashtags. In part, this recognises that real commercial value may lie in whatever it is that distinguished your trademark from your competitors’ trademarks, and should be capable of protection, but in some respects it is also due to recognition that trademarks must now be capable of operating in a digital world.
Non-traditional trademarks could now include touch (‘tactile’ or ‘texture’) marks, motion marks and holograms and hashtags.
The UK courts have sometimes struggled to apply the trademark decisions issued by the CJEU with enthusiasm and one of the effects of Brexit is that the UK courts have the opportunity to develop its own body of case law. Another, particularly pressing matter following the UK’s departure from the EU concerns the exhaustion of rights, which underpins parallel trade.
Changes to statutory protection are long overdue and perhaps now can be addressed. The current law was enacted in 1994 and whilst it has been ‘tweaked’ over time, it does not cater for the commercial world that exists today.
Rigel Moss McGrath, Partner
HGF
Address: 4th Floor, Merchant Exchange, 17-19 Whitworth Street West, Manchester, M1 5WG
Tel: +44 (0) 161 247 4900
Email: mcgrath@hgf.com
Website: hgf.com
HGF is one of Europe’s leading Intellectual Property firms, bringing together over 200 patent attorneys, trademark attorneys, design attorneys, IP solicitors and attorneys-at-law across 22 offices in seven European countries to provide a dynamic and complete IP solution.
Rigel Moss McGrath is a Chartered Trademark Attorney and Partner at HGF. She has practiced in the UK for almost 20 years and has particular experience in brand protection and contentious trademark proceedings.
Paraquat is a herbicide which has been sold since the early 1960s to eradicate weeds. It has been extensively used in agricultural areas throughout California, including the Central Valley, Sacramento Valley, Imperial Valley and Inyo County. It has also been used widely in the Midwest and in the Mississippi Delta.
Exposure to paraquat is dangerous as it can cause Parkinson's disease. People who are regularly exposed to paraquat through direct exposure and overspray exposure can develop Parkinson's disease as a result. We represent many clients who have lived on a farm adjacent to where paraquat was routinely sprayed or live in a residential area next to agricultural fields where paraquat was regularly applied.
The legal recourse is to file a lawsuit against the manufacturers. We are actively filing lawsuits against the major manufacturers of paraquat, including Chevron and Syngenta. Paraquat is also known by many brand names including Gramoxone, Blanco, Chevron, Devour and Helmquat.
People who are regularly exposed to paraquat through direct exposure and overspray exposure can develop Parkinson's disease as a result.
The basis of our lawsuits is the failure to warn of the specific health risks associated with paraquat exposure. We believe the manufacturers knew or should have known that paraquat exposure is linked to an increased risk of Parkinson's disease.
We are representing clients all over the country who have been exposed to paraquat and were subsequently diagnosed with Parkinson’s disease or who have developed Parkinson’s symptoms. We are handling cases on behalf of individuals who have worked in agricultural fields, lived close to agricultural fields where paraquat was sprayed, or those who purchased or applied paraquat.
We intend to prove that Paraquat exposure caused our clients’ Parkinson’s Disease symptoms.
Cases are currently moving through federal and various state courts throughout the country. A Multiple District Litigation (MDL) was recently established in St. Louis. There is a California State Court action as well. Litigation is now entering into an active phase. Nadrich & Cohen and its partners are in leadership positions in all of the major cases.
I recommend that the person reach out to Nadrich & Cohen. We offer a free consultation and can advise him or her of their legal options. We have an entire team dedicated to investigating and pursuing our clients’ paraquat claims.
Jeffrey Nadrich, Managing Partner
Nadrich & Cohen Accident Injury Lawyers
Address: 12100 Wilshire Blvd, Suite 1250, Los Angeles CA 90025
Tel: (310) 826 8082
Email: info@personalinjurylawcal.com
Website: personalinjurylawcal.com
Nadrich & Cohen is a specialised personal injury law firm serving clients throughout California and nationwide. Its lawyers are skilled in navigating complex cases and have recovered over $350 million on behalf of their clients over nearly three decades.
Jeffrey Nadrich is the founder and managing partner of Nadrich & Cohen. He is well known nationally for his high standards of honesty and is a frequent speaker on all aspects of personal injury law. He also mentors other lawyers and helps them to develop successful business practices.
The main features of equal pay law in the UK were established by 1984 (and left substantially unchanged by the Equality Act of 2010). A woman and a man have the same employer, or associated employers. One of them, the claimant – usually the woman, but not always – is paid less than the other (the comparator) or has terms of employment which are inferior in some other way. The claimant submits an employment tribunal claim. The first question for the tribunal involves a comparison of the two jobs – not the job holders – to determine whether or not the claimant’s job matches up to the comparator’s job in one of three ways. Has it been given an at least equivalent rating under a job evaluation scheme (JES)? Are the two jobs similar enough to be ‘like work’? Or is the claimant’s job of at least equal value to the comparator’s job?
If the claimant’s job satisfies one of these tests, there are further questions for the tribunal, provided that the employer has raised a ‘material factor’ defence. Has the employer given a credible explanation for the difference in pay or other terms? Has the employer also shown that the difference in gender formed no part of the reason? If the answer to both questions is yes, the employer can still lose, if the tribunal decide that the relevant pay practice involves indirect sex discrimination. In the early days, a common practice which was rarely upheld was to treat part-time workers less favourably than full-time workers, for example by excluding them from occupational pension schemes.
If the claimant succeeds in the claim, her (or his) pay and other contract terms are raised to the level of the comparator’s and back pay is awarded.
The main features of equal pay law in the UK were established by 1984 (and left substantially unchanged by the Equality Act of 2010).
Why did it take until 1984 for these main features to be established? It was 1970 when the Equal Pay Acts were passed (there was one for England, Wales and Scotland and a separate but very similar one for Northern Ireland) and December 1975 when they came into force. And why were the words ‘equal value’ highlighted in the opening paragraph? The answer is that in 1970 the UK government had considered and rejected the concept of equal value (or comparable worth as it is known in the USA). However, in 1973 the UK joined the European Economic Community (which much later became the European Union). Equal pay for equal work was a key and overriding principle of community law and in 1975 a Directive added the words ‘or work of equal value’. The Equal Pay Acts were eventually (from January 1984) amended to comply with this Directive.
Detailed procedural rules were brought in at the same time and have subsequently been amended more than once. The purpose of the equal value exercise is to identify and compare the demands of the two jobs under a range of factors, such as the qualifications and experience required to do the job, the various responsibilities placed on the job holder, the physical and communication skills required, the degree of independence granted to the job holder, the working conditions and the demands in terms of physical, mental or emotional effort. The tribunal normally has the benefit of a report by an independent expert (IE). It is a common fallacy that the IE decides the question of equal value. In fact, the decision rests with the tribunal. I chaired two hearings in which we had a ‘battle of experts’, the IE and one for each party, and in one of those cases our conclusion was the opposite of that recommended by the IE.
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Many employers, particularly large organisations, have a JES in place. A JES, if it is analytical, can be either a gateway or a brick wall for claimants. As already mentioned, it answers the job comparison question in the claimant’s favour if the claimant’s job has been given at least an equivalent rating. On the other hand, if the comparator’s job has been given a higher rating, then the claimant cannot pursue an equal value claim - unless the JES can be successfully challenged. In the NHS litigation, a tribunal which I chaired rejected a challenge to a JES which covered nearly a million jobs. Several thousand claimants who relied on comparators in higher grades then withdrew their claims. On the other hand, there were successful challenges to a JES in some of the large local authority cases. Key questions for large organisations are whether to introduce a JES if they don’t have one and whether an existing JES will stand up to scrutiny.
There have been no fundamental statutory changes to equal pay since 1984, not even under the Equality Act). However, in 1993 a decision of the European Court of Justice (ECJ) was of huge importance to many large organisations and their employees. In the Enderby case, which involved claims by speech therapists, the ECJ decided that paying more for a job done predominantly by men than for a job of equal value done almost exclusively by women can be unlawful indirect discrimination, unless objectively justified. The fact that there were separate negotiations for the two jobs, conducted in absolute good faith, was not sufficient justification. Subsequent cases established that the statistical gender differences between the two workforces need not be as extreme as those in the Enderby case.
A JES, if it is analytical, can be either a gateway or a brick wall for claimants.
The Enderby principle underpinned the tens of thousands of equal pay claims against local authorities in the first decade of this century, the much smaller number of NHS claims and now the increasing number of claims by staff working in supermarkets, whose comparators are employees working in the employer’s distribution centres. The principle is relevant mainly to large organisations, because they are the employers most likely to have aggregations of women in some jobs and men in others.
An apparently inevitable aspect of the multiple equal pay claims has been that it could take many years for claims to be concluded. This is largely because of sheer weight of numbers. It is a huge administrative task for the lawyers on each side to prepare a case for hearing - for example selecting the most appropriate lead claimants and comparators, sifting through thousands of pages of documents and assimilating new claims as they come in.
Until now, delays have also been caused by a particular preliminary issue. Can claimants in one establishment rely on comparators who are fellow employees in a different establishment? In the Asda cases, the first claims were made in 2014, but the preliminary issue was not finally resolved in favour of the claimants until May 2021. However, that decision, and the Court of Justice decision in favour of the Tesco claimants the following month, have made it very unlikely that future cases will get bogged down on this issue.
An apparently inevitable aspect of the multiple equal pay claims has been that it could take many years for claims to be concluded.
The UK has now left the EU. Future changes to EU law will not apply to the UK and there will be no further references to the Court of Justice from the UK. However, the EU law which was part of UK law on 31 December 2020, including the Enderby principle, will remain part of UK law, unless and until changed by Parliament or by the Supreme Court.
Employers should bear in mind that Enderby type cases are not the only challenges. They need to be aware of equal pay practices which could be indirectly discriminatory even as between employees doing the same or similar jobs. Equal pay cases have also been known to succeed simply because employers don’t understand their own pay systems or can’t explain why one person is paid more than another. Large organisations are particularly vulnerable, because of the greater likelihood that more than one person will have been involved in making decisions about pay. Accurate and detailed record keeping is essential.
Michael Malone, Fellow, CIArb
Contact Steve Walker, Lead Civil Clerk
Address: Trinity Chambers, The Custom House, Quayside, Newcastle upon Tyne, NE1 3DE
Tel: +44 0191 232 1927
Fax: +44 0191 232 7975
Email: SteveW@trinitychambers.co.uk
Website: www.trinitychambers.co.uk
Trinity Chambers is one of the leading sets of barristers’ chambers in the North of England. Regularly recommended in the Legal 500 and Chambers and Partners Directories, with Chambers in Newcastle, Middlesbrough and Leeds, Trinity barristers and Silks deal with cases across the UK.
Michael Malone is a retired employment judge. He is a CEDR accredited mediator and a Fellow of the Chartered Institute of Arbitrators. He is based at Trinity Chambers, Newcastle, to undertake mediations (across the whole range of contractual, commercial and employment disputes) and also early neutral evaluation in equal pay and other employment cases. He is also willing to give in house briefings, to lawyers, HR professionals and others, on equal pay generally or on specific aspects of equal pay law.
Being on the wrong side of the law can be scary, especially when you might be facing drug charges, a DWI or DUI, or something equally as serious. While your thoughts might be on jail time and the severe consequences of your actions, it can also be worth thinking about hiring a defence lawyer, especially if any of the following situations play out.
As you may not be experienced with criminal law or how it works, contacting a criminal defence attorney can be crucial as soon as you have been arrested or are under investigation for a crime like a DUI.
Serious penalties can be associated with such a crime if you are convicted, such as jail time, losing your driver’s license, and fines. Even though you may be told legal intervention isn’t required in the early stages, it can be. Your lawyer can ensure that your constitutional rights are being protected in state and federal criminal cases.
Depending on the charges you’re facing, you may see the value in hiring a lawyer to represent you during the criminal trial process. For example, if you’re facing a sex offence, you may hire a sex offence lawyer or a DVPO attorney for a breach. They can use their experience within the judicial system to provide you with the best possible outcome, which might be reducing your sentence or getting the charges dropped altogether.
You may require the help of a criminal defence lawyer if you believe something is unfair enough to require filing a motion. For example, if the only evidence tying you to a crime was gathered through force, you may request that your Haywood County lawyer file a motion to suppress evidence. This is not something you can typically manage independently, as suppressing evidence in serious crimes can involve cross-examining the arresting police officer.
Fairness can also extend to your previous convictions. You may be able to file a motion to strike a prior conviction for the chance to benefit from a less severe penalty. Again, this can require the help of an experienced lawyer.
An expert witness is a professional in a particular industry that can cast doubt over your innocence or guilt. If you are aiming for the best outcome possible, you might hire a lawyer who can find expert witnesses to add strength to your case. It’s worth noting that many DUI trials involve an expert witness to prove the charges against you, so there’s no harm in helping yourself by doing the same thing.
If you’ve never been on the wrong side of the law before, it’s only natural to be scared, stressed, and unsure about what to do next. The police might tell you that you don’t need a lawyer, but they may also cause you to say something that can be used as evidence against you. To avoid uncertainties and potentially put you in a better position to achieve the best outcome, contact a lawyer as soon as possible. They can provide you with helpful information so that you understand what steps to take next.
The right time to hire a criminal defence lawyer is sooner rather than later. The faster you make the call, the quicker you can be supported and guided through the sometimes-daunting legal system.
Johansson claims that her salary was based on the film’s box office performance, which opened strong in the United States with $80million. However, the second week saw a sharp 67% decline, the steepest second-week decline of any Marvel Cinematic Universe release. Exhibitors have blamed the simultaneous release of Black Widow on Disney+ for the drop.
In March, Disney announced that Black Widow would go to cinemas while simultaneously being available to rent on its streaming service for $30. The studio said it saw a profit of $60 million from rentals in the film’s opening weekend. Its global haul currently sits at $319 million, a significantly below-average performance compared to other Marvel releases.
According to Johansson’s complaint, her lawyers reached out to Disney back in 2019 with concerns about the plan to give Black Widow a multi-platform release. After the release strategy was changed, they then attempted to renegotiate Johansson’s contract.
John Berlinski, an attorney at Kasowitz Benson Torres LLP, said that it is unlikely that this will be the last case where Hollywood talent stands up to Disney and that, no matter what Disney may pretend, it has a legal obligation to honour its contracts with actors.
Back in May, Disney’s CEO Bob Chapek defended the company’s release strategy, stating that flexibility was important and that Disney was attempting to offer greater choice to its customers. In a recent statement, the company fired back at Johansson, claiming that there is no merit to the filing.
