Overview of the MSPB Appeal Process For Federal Employees

Most federal employees who are being suspended (for 15 days or more), demoted, or fired, may have appeal rights to the Merit Systems Protection Board (MSPB). For attorneys and pro-se appellants, understanding the MSPB Appeal Process can be a bit daunting. Here’s the various stages of an MSPB appeal, beginning with the Adverse Action Proposal Letter and continuing through an Appeal to the Full Board.

Proposal Letter: This is the most crucial document in the entire process – it proposes the action that the Agency wants to take. The letter should indicate that the employee may issue an oral/written reply, that the employee has a right to representation, and that the employee has a right to request the “material relied upon”.

Oral/Written Reply: This is the employee’s chance to show the Agency why they should not take the proposed action.

The employee does not have to admit any misconduct or prove his or her innocence. Typically, unless there is clear and convincing exonerating evidence, it is often best to simply deny the misconduct, and discuss the Douglas Factors completely. Be sure to consult an attorney – how the employee approaches an oral or written reply can later affect an attorney’s strategy before the MSPB.

Decision Letter: After the proposal letter and any oral/written reply, the Agency will issue its decision letter. Most decision letters cannot be issued within 30 days of the proposal letter (there are, of course, exceptions to this general rule). The decision letter must contain certain enumerated rights, including an MSPB appeal right.

Penalty: Usually, the decision letter will state when the suspension or removal will occur. In rare instances, Agencies will “abate” the suspension or removal pending the outcome of any appeals. They might do this on longer suspensions and questionable removals where they could be liable for interest under the BackPay Act if the Agency cannot prevail at the MSPB.

MSPB Appeal: By visiting the Board’s website, a Federal Employee can download Form 185, which is used to file an appeal. The Administrative Judge will send the employee (now the Appellant) and the Agency (now the Respondent) an “Acknowledgment Order” requiring the Agency to designate a representative and provide the Agency’s Evidentiary File within a certain number of days. Read all orders from the Administrative Judge very carefully, and be sure to scrupulously adhere to all timelines.

Agency File: This is the Agency’s chance to “pad the record”. Typically, an Agency File should contain all the evidence on which the Agency intends to rely to prove its case. Oftentimes, Agency attorneys will pad the record with information meant to embarrass or later impeach a witness or the Appellant. Anything in the Agency File is guaranteed to be in the record – the Agency is unlikely to put information in the record that is harmful to their case, unless specifically required by the Judge.

Hearing Stage: After the Agency File is submitted, the Administrative Judge will set the timeline for the hearing through the use of a Scheduling Order. The Scheduling Order (sometimes included in or with the Acknowledgment Order) tells the Appellants the key dates for his or her appeal: when to initiate discovery, when to present Pre-Hearing Submissions, when to participate in the Pre-Hearing Conference and when/where the hearing will be held. There is so much information in the Scheduling Order – be sure to read it closely – more than once! The hearing itself is an administrative hearing, somewhat more structured than an EEOC hearing, but nowhere near as structured as a state or Federal Court trial. The MSPB records the testimony – if the employee later wants a copy, the employee will have to pay for a transcript or a copy of the tapes.

Initial Decision:After the hearing (usually 30 – 90 days later) the Administrative Judge will issue his or her Initial Decision. This decision will contain the employee’s appeal rights – which can be complicated. The claims and defenses that were alleged will determine the appeal rights – the Appellant may have a right to file in Federal District Court, in the Federal Circuit Court, the EEOC, or file a Petition for Review with the Full Board.

Petition for Review: If the Appellant challenge the Administrative Judge’s decision, the employee may file a Petition for Review, also known as a “PFR”. The standard for prevailing on a PFR is very high for appellants – the record below has to be properly preserved, and there has to be a showing that but for an error at the hearing or in the Judge’s decision, the outcome would have been different for the Appellant. Usually, Agency’s do not appeal – there are limited scenarios where an Agency may file a PFR of its own. On even fewer occasions, OPM may intervene and appeal on behalf of the Agency (this is usually only when OPM feels that the decision of the Board will have a detrimental effect on a large number of federal employees).

Other Appeal Rights: In some situations, the employee may be able to file suit in a United States District Court, the Federal Circuit Court of Appeals, or the EEOC. These situations are too complex to discuss here.

Trademark International Class â Classes 32 & 33 â Light Beverages â Wines and Spirits

All goods or services are categorized within International Classes (IC hereafter). Goods run from classes IC 1-34, while Services are in IC 35-45. Let’s take a closer look at a group of these trademark classes – classes 32 & 33.

What are International Classes 32 & 33 All About?

These 2 classes represent the beverage classifications for trademarks. Class 32 is light beverages and has about 186 possible descriptions; class 33 is wines and spirits & has about 130 possible descriptions.

Almost any non-alcoholic beverage is in IC 32 except beer, which is in IC 32. This class includes waters, juices, sodas as well as syrups and essences used in making non-alcoholic beverages.

IC 33 is going to be any type of liquor, wine or spirit. Also included are syrups and essences using in making alcoholic beverages.

Geographical Indications for Wines & Spirits

Wines and spirits get a special little section of their own in the Trademark Manual of Examining Procedure and it’s all about location, location, location. When a geographic name is used as part of a name for wine or spirits, the USPTO has all kinds of things to say about that. Let’s break it down by what they say and what that means:

Geographical Indications Used on Wines and Spirits That Do Not Originate in the Named Place

“Geographical indications” are defined…as “indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.” … Obscure areas or those that do not have a reputation or other characteristics generally associated with wines or spirits should not be prohibited from registration.

Clear as a bell, eh? Basically this means that USPTO will refuse a mark that contains a place name if (1) the place is known for that particular good (e.g. Champagne, France as cited in the refusal against Champagne from Spain AND (2) your goods do not originate from that place, as in the champagne example.

There is an exception and that’s for obscure areas or for areas that don’t necessarily have a reputation for wine or spirits, such as with Tropical Liqueurs of Florida.

Geographical Indications Used on Wines and Spirits That Originate in the Named Place

This one’s a bit easier to understand. Here’s what the USPTO says:

“If the wines or spirits originate in the identified place, and the primary significance of the mark is a generally known geographic location, the examining attorney should presume the requisite goods/place association, and refuse the mark under §2(e)(2) as geographically descriptive, or require disclaimer of the geographic term, as appropriate.”

This is talking about wines or spirits that do originate in a known geographic location and the above has a two-fold explanation.

First, if the ENTIRE mark is the name of the place, the USPTO will refuse it on the grounds that it’s descriptive, as they did with Shampagne. As you can see in this case, even an alternate spelling does not bypass the descriptive refusal.

Second, if a PORTION of the mark is the name of the place, the USTPO will require a disclaimer of that portion, as they did with Bialla Napa Valley.

A Look at Safety Regulations

These days there are many safety checks on everything we come across. From our workplaces to town centres and any equipment we use, everything is rigorously tested to make sure it is safe for its purpose. Hear we look at some areas where health and safety has an impact.

CAR SAFETY
Car safety has improved dramatically over the last few decades. When the automobile was first used there were no regulations and the industry was still relatively unregulated until half way through the last century. Seat beats have been the most important development in car safety and have been given credit for saving thousands of lives. Car manufacturers started introducing seat belts in the late 1950’s with Volvo the first to do so. They were made compulsory in the front of cars in 1983 but not in the back until 1991. More recently air bags have been introduced by manufacturers. These are not compulsory but almost all new cars now have them installed.

Cars have to go through rigorous safety check to qualify as road worthy, which includes crash tests. Safety records are also used as a marketing tool by manufacturers, with those with the best records selling cars off the back of this. Cars are specifically designed to be as safe as possible. As well as checks before they are put on the road, cars also have to go through an MOT (specific to the UK). This is a group of tests carried out three years after a car is first used, and then every year thereafter. These test decide whether a car is deemed safe for use on the road.

PAT TESTING
PAT Testing stands for Portable Appliance Testing and is the regulatory test that must legally be carried out regularly on portable appliances. A PAT test will give and pass or fail result that will tell the users whether or not it is safe for use. PAT Testing is required for any portable appliances that are in public use. This includes any appliances (including fridges and ovens) that are supplied as part of a rented property, any equipment used in schools or the workplace, and anything that is used by or around the general public.

PUBLIC BUILDINGS
All public buildings are now subject to health and safety checks and regulations. They have to abide by certain rules to make sure the public are kept as safe as possible. Fire prevention methods need to be in operation and there must be sufficient fire escapes that are clearly marked. Any potential dangers, such as slippery floors, also need to marked. Other public areas also have regulations they must abide by.

WORKPLACES
Strict health and safety rules apply to all places of work. They are subject to many of the same health and safety regulations as public buildings. Regulations have been put in place to protect staff, and if applicable, customers. Employees need to be trained correctly so they are able to use any dangerous equipment correctly. Accidents also need to be recorded and reviewed to make sure a similar incident does not occur again if avoidable. Rules vary depending on the industry.

RESTAURANT & OTHER EATERIES
There are strict regulations for restaurants and eateries with regard to hygiene. For example, staff have to wash their hand regularly. Depending on the establishment and the job role specific clothing may have to be worn and other clothing may be banned. Employees with long hair who work in the kitchen must wear a hair net or have their hair tied back. Restaurants are subject to regular inspections and there can be on-the-spot inspections by health and safety officers.

HOSPITALS AND MEDICAL CENTRES
Not surprisingly there are many regulations around medical care. It is important that decease is not spread amongst patients so there are many rules to prevent this. Visitors and staff are asked to rub their hands with alcohol to sterilise them. Everything possible needs to be done to keep the risk of spreading infection to a minimum.

Andrew Marshall ©

Trademark Clearance Not an Option For Internet Businesses Looking to Avoid Trademark Infringement

Any person or business entity offering any type of good or service on the Internet today must be aware of the importance of trademark law.  In particular, whether it is the use of a domain name, the use of a trademark to identify certain goods, or the use of a service mark to identify particular services, such uses are likely to implicate federal trademark law.  This is because the Internet is everywhere, which means your prospective customers, existing customers, and competitors are everywhere.  While in the past an individual or business entity could operate its store or offer its service only within a certain geographical location, the Internet has made businesses international.  As such, not only may you now qualify for a federal trademark or service mark with the United States Patent and Trademark Office, but you may also be at risk of trademark infringement due to your use of a third party’s mark in interstate commerce.  

As a reminder, trademark law requires that in order to qualify for a trademark, an owner must use a distinctive mark in interstate commerce.  Therefore, if you believe you are using a mark that is not generic or descriptive, and using that mark to sell goods or services via a website on the Internet, you may qualify for a trademark with the United States Patent and Trademark Office (USPTO).  Even if you choose not to seek registration with the USPTO, you may still have common law trademark rights in locations where you do business.  While this is the benefit of conducting business via the Internet, there is also a new risk that start-up companies and businesses often overlook.

The most important risk to be aware of is trademark infringement.  Namely, your use of a character mark, design plus words mark, or logo on your website to sell your goods or services may create a likelihood of confusion with another trademark owned by a third party.  Should this third party discover your use of a confusingly similar trademark, they may seek to ensure that you do not continue use of the trademark, stop using a domain, or even attempt to sue you in an effort to collect damages or enjoin your business from continued operation using that trademark.  As such, it is now critical that all Internet businesses have a trademark clearance performed prior to operation on the Internet.    

A trademark clearance, also known as a trademark availability assessment, allows a qualified trademark attorney to review and analyze current uses of your particular trademark as well as those that may create a likelihood of confusion, which equates to trademark infringement.  While a search of the USPTO Database will reveal pending applications and registrations, it is also important to understand that common law trademark rights may be sufficient to create problems for a business.  As such, any prior use of a mark that is likely to cause confusion with your mark needs to be identified and analyzed.  Ultimately, failure to do so may result in you having invested significant time, marketing and advertising dollars, and effort to create your business and associated brand only to discover that a third party has prior rights to the trademark or service mark you use.  

Therefore, a prudent business person will recognize the value in a trademark clearance and seek to ensure the availability of its particular trademark or service mark in light of the Internet’s development.  While a trademark clearance reveals potential problems, it may also reveal that you are indeed the first to use a particular trademark or service mark, and therefore, you may be entitled to seek a federal trademark registration with the USPTO.  While you can rely upon your common law trademark rights, a trademark registration with the USPTO offers significant benefits that have tangible value to any business owner.  Regardless, with the advance of the Internet and global reach of businesses, no one should overlook the importance of a trademark clearance, and if possible, the benefits of a trademark registration.

Trademark International Class â Classes 32 & 33 â Light Beverages â Wines and Spirits

All goods or services are categorized within International Classes (IC hereafter). Goods run from classes IC 1-34, while Services are in IC 35-45. Let’s take a closer look at a group of these trademark classes – classes 32 & 33.

What are International Classes 32 & 33 All About?

These 2 classes represent the beverage classifications for trademarks. Class 32 is light beverages and has about 186 possible descriptions; class 33 is wines and spirits & has about 130 possible descriptions.

Almost any non-alcoholic beverage is in IC 32 except beer, which is in IC 32. This class includes waters, juices, sodas as well as syrups and essences used in making non-alcoholic beverages.

IC 33 is going to be any type of liquor, wine or spirit. Also included are syrups and essences using in making alcoholic beverages.

Geographical Indications for Wines & Spirits

Wines and spirits get a special little section of their own in the Trademark Manual of Examining Procedure and it’s all about location, location, location. When a geographic name is used as part of a name for wine or spirits, the USPTO has all kinds of things to say about that. Let’s break it down by what they say and what that means:

Geographical Indications Used on Wines and Spirits That Do Not Originate in the Named Place

“Geographical indications” are defined…as “indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.” … Obscure areas or those that do not have a reputation or other characteristics generally associated with wines or spirits should not be prohibited from registration.

Clear as a bell, eh? Basically this means that USPTO will refuse a mark that contains a place name if (1) the place is known for that particular good (e.g. Champagne, France as cited in the refusal against Champagne from Spain AND (2) your goods do not originate from that place, as in the champagne example.

There is an exception and that’s for obscure areas or for areas that don’t necessarily have a reputation for wine or spirits, such as with Tropical Liqueurs of Florida.

Geographical Indications Used on Wines and Spirits That Originate in the Named Place

This one’s a bit easier to understand. Here’s what the USPTO says:

“If the wines or spirits originate in the identified place, and the primary significance of the mark is a generally known geographic location, the examining attorney should presume the requisite goods/place association, and refuse the mark under §2(e)(2) as geographically descriptive, or require disclaimer of the geographic term, as appropriate.”

This is talking about wines or spirits that do originate in a known geographic location and the above has a two-fold explanation.

First, if the ENTIRE mark is the name of the place, the USPTO will refuse it on the grounds that it’s descriptive, as they did with Shampagne. As you can see in this case, even an alternate spelling does not bypass the descriptive refusal.

Second, if a PORTION of the mark is the name of the place, the USTPO will require a disclaimer of that portion, as they did with Bialla Napa Valley.

Companies Act 2006 â Impact on Companyâs Constitutional Documents

From 1 October 2009 companies should be anticipating significant changes to their administration and management as new provisions contained in the Companies Act 2006 come into force. One of the areas which will require a professional review and possible amendments is the company’s Memorandum and Articles of Association. This article explains the main alterations and steps which need to be taken to comply with the 2006 Act in respect of the Memorandum and Articles.

The Memorandum and Articles of Association

The Memorandum states the company’s name, registered office address, its objects (which define the company’s power and scope of activities), authorized capital, and members’ liability. As companies can act only within the scope of their objects, defining the objects should be well-thought-out.

The Articles of Association are a company’s internal rulebook. They are chosen by the company’s members and outline their responsibilities, powers, share options and other provisions critical for running the business as efficiently as possible. It is a form of a contract between the company and its members, and between each of the members, which is legally binding on the company and all of its members.

Members can decide which rules to include in their company’s Articles, provided that the rules are not unlawful, for example are not discriminatory. It is recommended to take professional advice when drafting this document.

New rules and their implications on the constitutional documents

The Companies Act 2006 imposes new obligations on all limited companies, regardless of when they were incorporated. Apart from the Memorandum and Articles of Association, companies limited by shares will also be required to have a Statement of Capital and Shareholdings (which can be incorporated into the new Articles), whereas companies limited by guarantee will need to have a Statement of Guarantee.

Companies incorporated on or after 1 October 2009 will adopt a new and simpler than previously required style of Memorandum. The new businesses will be able to decide whether to list objects for the company or leave them unrestricted. As information on capital and shareholdings will no longer be part of the Memorandum, the newly incorporated companies will be required to file the appropriate Statement containing this information with Companies House on registration. The Statement will become part of the Articles. Directors will have to remember to file updated Statements with the Registrar as necessary.

Changes to the existing documents

Directors and members of companies registered under the Companies Act 1985 or previous Companies Acts can choose whether or not they want to make changes to their constitutional documents following the introduction of the new rules. The parts of the Memorandum which are additional to the Statement of Capital and Shareholdings will automatically become part of the company’s Articles of Association.

However, if there are changes to the current Articles on or after 1 October 2009 or amendments approved at a general meeting and agreed take effect on or after that date, the relevant parts of the ‘old-style’ Memorandum and objects will have to be included too when filing the new Articles, unless they are also amended.

Changes to the share capital after 1 October 2009 should be reported in the new Statement of Capital.

Conclusion

The Companies Act 2006 brings major changes to the way the company’s constitutional documents are composed. Those who are not sure what steps their company should take to comply with the new regulations are recommended to seek advice from government organisations or specialist firms, such as London Registrars.

A Look at Safety Regulations

These days there are many safety checks on everything we come across. From our workplaces to town centres and any equipment we use, everything is rigorously tested to make sure it is safe for its purpose. Hear we look at some areas where health and safety has an impact.

CAR SAFETY
Car safety has improved dramatically over the last few decades. When the automobile was first used there were no regulations and the industry was still relatively unregulated until half way through the last century. Seat beats have been the most important development in car safety and have been given credit for saving thousands of lives. Car manufacturers started introducing seat belts in the late 1950’s with Volvo the first to do so. They were made compulsory in the front of cars in 1983 but not in the back until 1991. More recently air bags have been introduced by manufacturers. These are not compulsory but almost all new cars now have them installed.

Cars have to go through rigorous safety check to qualify as road worthy, which includes crash tests. Safety records are also used as a marketing tool by manufacturers, with those with the best records selling cars off the back of this. Cars are specifically designed to be as safe as possible. As well as checks before they are put on the road, cars also have to go through an MOT (specific to the UK). This is a group of tests carried out three years after a car is first used, and then every year thereafter. These test decide whether a car is deemed safe for use on the road.

PAT TESTING
PAT Testing stands for Portable Appliance Testing and is the regulatory test that must legally be carried out regularly on portable appliances. A PAT test will give and pass or fail result that will tell the users whether or not it is safe for use. PAT Testing is required for any portable appliances that are in public use. This includes any appliances (including fridges and ovens) that are supplied as part of a rented property, any equipment used in schools or the workplace, and anything that is used by or around the general public.

PUBLIC BUILDINGS
All public buildings are now subject to health and safety checks and regulations. They have to abide by certain rules to make sure the public are kept as safe as possible. Fire prevention methods need to be in operation and there must be sufficient fire escapes that are clearly marked. Any potential dangers, such as slippery floors, also need to marked. Other public areas also have regulations they must abide by.

WORKPLACES
Strict health and safety rules apply to all places of work. They are subject to many of the same health and safety regulations as public buildings. Regulations have been put in place to protect staff, and if applicable, customers. Employees need to be trained correctly so they are able to use any dangerous equipment correctly. Accidents also need to be recorded and reviewed to make sure a similar incident does not occur again if avoidable. Rules vary depending on the industry.

RESTAURANT & OTHER EATERIES
There are strict regulations for restaurants and eateries with regard to hygiene. For example, staff have to wash their hand regularly. Depending on the establishment and the job role specific clothing may have to be worn and other clothing may be banned. Employees with long hair who work in the kitchen must wear a hair net or have their hair tied back. Restaurants are subject to regular inspections and there can be on-the-spot inspections by health and safety officers.

HOSPITALS AND MEDICAL CENTRES
Not surprisingly there are many regulations around medical care. It is important that decease is not spread amongst patients so there are many rules to prevent this. Visitors and staff are asked to rub their hands with alcohol to sterilise them. Everything possible needs to be done to keep the risk of spreading infection to a minimum.

Andrew Marshall ©

Trademark Clearance Not an Option For Internet Businesses Looking to Avoid Trademark Infringement

Any person or business entity offering any type of good or service on the Internet today must be aware of the importance of trademark law.  In particular, whether it is the use of a domain name, the use of a trademark to identify certain goods, or the use of a service mark to identify particular services, such uses are likely to implicate federal trademark law.  This is because the Internet is everywhere, which means your prospective customers, existing customers, and competitors are everywhere.  While in the past an individual or business entity could operate its store or offer its service only within a certain geographical location, the Internet has made businesses international.  As such, not only may you now qualify for a federal trademark or service mark with the United States Patent and Trademark Office, but you may also be at risk of trademark infringement due to your use of a third party’s mark in interstate commerce.  

As a reminder, trademark law requires that in order to qualify for a trademark, an owner must use a distinctive mark in interstate commerce.  Therefore, if you believe you are using a mark that is not generic or descriptive, and using that mark to sell goods or services via a website on the Internet, you may qualify for a trademark with the United States Patent and Trademark Office (USPTO).  Even if you choose not to seek registration with the USPTO, you may still have common law trademark rights in locations where you do business.  While this is the benefit of conducting business via the Internet, there is also a new risk that start-up companies and businesses often overlook.

The most important risk to be aware of is trademark infringement.  Namely, your use of a character mark, design plus words mark, or logo on your website to sell your goods or services may create a likelihood of confusion with another trademark owned by a third party.  Should this third party discover your use of a confusingly similar trademark, they may seek to ensure that you do not continue use of the trademark, stop using a domain, or even attempt to sue you in an effort to collect damages or enjoin your business from continued operation using that trademark.  As such, it is now critical that all Internet businesses have a trademark clearance performed prior to operation on the Internet.    

A trademark clearance, also known as a trademark availability assessment, allows a qualified trademark attorney to review and analyze current uses of your particular trademark as well as those that may create a likelihood of confusion, which equates to trademark infringement.  While a search of the USPTO Database will reveal pending applications and registrations, it is also important to understand that common law trademark rights may be sufficient to create problems for a business.  As such, any prior use of a mark that is likely to cause confusion with your mark needs to be identified and analyzed.  Ultimately, failure to do so may result in you having invested significant time, marketing and advertising dollars, and effort to create your business and associated brand only to discover that a third party has prior rights to the trademark or service mark you use.  

Therefore, a prudent business person will recognize the value in a trademark clearance and seek to ensure the availability of its particular trademark or service mark in light of the Internet’s development.  While a trademark clearance reveals potential problems, it may also reveal that you are indeed the first to use a particular trademark or service mark, and therefore, you may be entitled to seek a federal trademark registration with the USPTO.  While you can rely upon your common law trademark rights, a trademark registration with the USPTO offers significant benefits that have tangible value to any business owner.  Regardless, with the advance of the Internet and global reach of businesses, no one should overlook the importance of a trademark clearance, and if possible, the benefits of a trademark registration.

Registering Shapes and Three-Dimensional Trademarks â March 2009

A trademark conveys the image, personality and the origin of the products to a customer. Through this information, the consumer will make an economic decision to purchase. Thus, trademarks are crucial in developing a company’s strategy.

Brand owners invest a lot of money in advertising campaigns and in market studies to find successful products that consumers are likely to buy. Brand owners should protect their valuable property against competitors aspiring to benefit from the attractive brand and therefore damaging the uniqueness of the trademark. With a high level of competition, transactions that must proceed rapidly and aggressive business behavior, brand owners hoped they could get more protection for their brand by registering shape marks.

Section 1 (1) from the Trademark Act 1994 provides that: “a trademark means any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings.” This broad definition enables traders to use new types of trademarks such as three-dimensional trademarks or shape marks capable of being represented on a recorded or published form. These marks are signs consisting of a product’s shape, packaging or others three-dimensional signs.

Nevertheless, intellectual property authorities are reluctant to allow registration to three-dimensional trademarks. The idea behind this is to avoid excessive monopolies that would paralyze the market, competition and designers from creating innovative products.

With that in mind, this article will consider and move into the issues of registering a three-dimensional trademark following key questions: why should a product be protected by using a shape mark? How to overcome the refusal of registration by national authorities?

Why register a shape mark?

Registering is the best way to secure a trademark. The owner of a registered trademark has exclusive rights in that trademark. It means that no one else can use the trademark without consent.

The shape, product or the packaging of the product is represented more precisely on the register. The possibility to visualize the product three-dimensionally gives a better understanding of the quality of the product. Shape marks provide a useful tool to customs to seize counterfeit products. Even though registering a three-dimensional trademark presents advantages, applicants often face refusals from IP authorities.

Grounds for refusal of registration

Sections 3 and 5 of the Trademark Act 1994 set out two grounds for refusal of registration, namely absolute grounds and relative grounds. Absolute grounds, relating to the nature of the mark itself, refuse registration to signs that do not comply with the definition of a trademark given by section 1 (1) of the Trademark Act 1994. A trademark without any distinctive character cannot be registered. It is the same case for trademarks that describe the characteristics of goods or services. A generic sign that entered the current language follows the same regime. Section 3 (2) states that a shape resulting from the nature of the goods themselves or which is necessary to obtain a technical result or which gives substantial value to the good cannot be registered. It provides a limitation to the trademark system for shape marks in order to maintain a balance between intellectual property rights. Relative grounds refuse registration if a later trademark is in conflict with an earlier trademark.

In Insurance Ltd v. Direct Line Insurance Plc in 13 December 2006 an insurance company registered a three-dimensional trademark representing a telephone on wheels in class 36 referring to insurance, financial and monetary services. Another insurance company tried to register as a three-dimensional trademark a mouse with wheels for the same type of services. The application was refused. The similarity between the two signs could lead the average consumer to confusion in believing that the two trademarks were linked.

Bongrain SA’s Trademark application in 17 December 2004 an applicant tried to register the shape of some cheese. Even though, the shape was unusual the Court preferred to refuse the registration to maintain free competition between traders in that sector of consumer goods.

The decisions concerning the acceptance of registration for shape marks are linked with the type of product. The more exclusive and rare the product is, the more IP authorities accept the application. For luxury goods, the purchaser will pay attention to the shapes of the goods to comply with the high standard of product he is looking for. The consumer knows exactly what product he wants to purchase. With the act of purchase, the customer wants the product to be linked with the manufacturer. That is the reason why IP authorities are keen to allow registration on luxury products, as there are no doubts about the intention of the purchaser.

On the contrary, common shapes will have difficulties in attaining registration. Does the consumer pay attention to the shape? Marketing people may answer that it is unconscious and that the consumer does not associate most shapes with brands.

How to convince IP authorities?

The European Court of Justice has concluded that three-dimensional trademarks followed the same requirements as traditional trademarks but in practice, national offices are reluctant to allow registration. The problem is that few three dimensional marks are seen as being distinctive enough.

A product shape or its packaging must clearly contrast from the ordinary item of commerce of the category of product concerned so a higher standard of distinctiveness is expected. The applicant will have to put more effort to prove the originality of the shape. For certain types of goods, three-dimensional trademarks are more appropriate to have a better perception of the product than word mark. Surveys on the average consumer perception of the shape as well as expert witnesses could be helpful in this area.

In theory, registering a three-dimensional trademark should not be more difficult than registering more traditional marks. In practice, trademark owners face complications especially in relation to consumer goods. As three dimensional marks become more common hopefully national office will offer clearer guidelines and fewer refusals.

When is it Risky to Provide Patient Information? (Part I)|John Floyd

A friend has a 32-year-old daughter confined in a state mental hospital with schizophrenia. He and his wife feel that they should be able to talk with the treating doctors and caseworkers about the condition and treatment of their daughter. The doctors, however, will not discuss her case with them unless the daughter has a signed consent agreement in effect – an agreement that must be revalidated every 90 days and that she can revoke at any time. Depending on her state of mind at any given point in time, the release may or may not be in effect. Everyone involved acknowledges the frustrations of such limitations, but the hospital staff is following the letter of the law: protecting the rights of patients.

Once again, I need to add the disclaimer that I am not an attorney; however, disclosing patient information can be a legal minefield if the proper precautions are not taken.

Every physician and health care provider is constantly faced with similar situations concerning their patients:

• A child inquires about the medical condition of an elderly parent.
• A boss questions the recovery status of an employee.
• A wife wants details about her husband’s condition because he is reticent to talk about it with her.
• A brother calls about the care of his sister.

Those making such inquiries usually maintain a sense of entitlement to the information; after all it is their child, their parent, their relation, their employee. Sometimes they can be quite forceful and convincing in their arguments to gain access to such information; yet, by law, the medical practitioner is prohibited from sharing without the patient’s permission.

Family or not, HIPAA places very strict limits on sharing confidential medical information with anyone. Remember that appearances can be deceiving and there could be ongoing legal activity relating to separations, divorces and other family or work issues.

Third party releases are also prohibited in most cases. For instance:

• A parent cannot verbally request a child’s records to be sent to a daycare center or school. The parent must either sign an authorization form or pick up the records to personally deliver them to the school.
• An attorney’s written request for a client’s records does not authorize release without a signed authorization from the patient or a court order.
• A university professor’s request to review medical records for a study is also prohibited without a signed authorizations or a waiver approved by the IRB (Institutional Review Board).

As with any rule, there are some exceptions that do not require releases or authorizations.

• Information can be shared between clinicians who are involved in the patient’s care.
• Activities related to such health care operations as audits, credentialing and accreditation are allowed. However note that outside auditors must have a signed business associate agreement in place before accessing records.
• Governmental entities may require disclosure of information related to public safety. (For instance, losses of consciousness may have to be reported to motor vehicle departments or direct threats to harm someone may have to be reported to law enforcement officials.)

To avoid potential lawsuits or claims, take a conservative approach to the disclosure of information. Do not make assumptions. Ask patients, in advance, to identify those individuals with whom information can be shared. Place such signed consents in a prominent and accessible section of the chart. In cases of surgery, have the patient identify one person with whom the surgeon should talk after the operation.

Ensure that your staff is fully briefed on current laws as to disclosure of information, particularly over the telephone – including information to other physicians.

In today’s world of minors from mixed families, divorces and child custody agreements, many questions can arise about the release of information to non-custodial parents and extended family members. If there is any doubt about releasing information, first contact your professional liability insurer or a health law attorney for clarification.

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