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| 07.15.10 | TTAB Sustains Opposition Based Solely on Likelihood of Dilution by Blurring For the First Time Since the Passage of the Federal Dilution Trademark Act
Robert E. Browne
Abstract: On June 11, 2010, the Trademark Trial and Appeal Board (the “Board”) sustained the National Pork Board and National Pork Producers Council’s (“Opposers”) opposition to registration of the mark “THE OTHER RED MEAT” based on the likelihood that its registration would blur the distinctiveness of Opposers’ mark “THE OTHER WHITE MEAT.” Nat’l Pork Bd. & Nat’l Pork Producers Council v. Supreme Lobster & Seafood Co., 2010 WL 2513872 (Trademark Tr. & App. Bd. Jun. 11, 2010). The ruling is significant because the Board sustained the opposition without considering likelihood of confusion as a ground for opposing the registration. The Board’s decision is the first to sustain an opposition based solely on the ground of likelihood of dilution by blurring since the Federal Dilution Trademark Act, and the Trademark Amendments Act of 1999 went into effect. |
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| 07.08.10 | Beware Aggressive Marketers of Asian Domain Names
Lee J. Eulgen
Abstract: Recently, many of our clients have received emails from purported Asian domain name registrars that utilize a particular scare tactic in an attempt to convince our clients to register domain names comprised of their brands with the .CN, .HK, .IN, and other Asian country code domain indicators. The emails allege that the registrar has received a third-party application to register certain domain names comprised of the client’s brand, and request the client contact them to discuss the issue. If and when the company does contact the registrar, the registrar attempts to sell the client those domains.
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| 07.08.10 | RICO Claims for Vendor Sales and Use Tax Collection Liabilities: A Step Too Far?
State Law & State Taxation Corner
John A. Biek
Abstract: All state sales and use tax laws provide a comprehensive mechanism for their enforcement. Sales tax administrators are given the authority to conduct audits of vendors and consumers to determine whether they are reporting and remitting the correct amount of tax. State tax auditors typically have the ability to subpoena and review records, to question taxpayer personnel and third parties, and to tap the knowledge of tax administrators of other states about the taxpayer’s business operations and tax returns. Large businesses usually undergo regular sales/use tax audits by the states, helping to ensure that the correct amount of tax is collected and remitted at the end of the day. Woe to the wayward vendor or consumer who has underpaid its sales/use tax liability and will be subject to interest and civil penalties—and possibly criminal penalties—on the defi ciency amount! Neal Gerber Eisenberg Tax Practice Group partner John A. Biek authored this article.
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| 07.08.10 | Grantor Trusts
Estate & Succession Planning Corner
Lawrence I. Richman
Abstract: For domestic (U.S.) grantor trusts, there are two sets of rules under Subchapter J, Part E, of the Internal Revenue Code; the grantor grantor trust rules of Code Secs. 671-677 and the benefi ciary grantor trust rules of Code Sec. 678. Recently, LTR 200949012 was published.3 The issue in LTR 200949012 was whether the trust in question would be treated as a grantor grantor trust, a beneficiary grantor trust, or as an irrevocable trust taxable under the distributable net income (DNI) rules of Subchapter J, Parts A-D. Under the facts presented, the grantor’s role was limited to the creation of the trust and the transfer of property to it. Neither the grantor nor the grantor’s spouse was a benefi ciary of the trust, had any interest in the trust, could be the recipient of income or principal from the trust, or could be benefi ted through the payment of premiums of insurance on their life. Neal Gerber Eisenberg Private Wealth Services partner Lawrence I. Richman authored this article.
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| 07.01.10 | Supreme Court Reaffirms that Business Methods Are Still Patentable and Not Limited by the Federal Circuit’s “Machine or Transformation” Test
James P. Muraff, Thomas E. Williams, Lawrence E. James, Jr.
Abstract: The Supreme Court recently issued its long-awaited ruling in Bilski v. Kappos, 561 U.S. ___ (2010). This case presented the question of whether a business method may be patented, and if so, whether patentability of a business method should be determined using the so-called “machine or transformation” test advanced by the Federal Circuit. Under the “machine or transformation test,” the Federal Circuit had limited the patentability of methods to those which (1) were tied to a particular machine or apparatus, or (2) transformed a particular article into a different state or thing. In re Bilski, 545 F.3d 943, 961 (Fed. Cir. 2008).
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