Author: mskllp

Since 1908, Mitchell Silberberg & Knupp LLP (MSK) has proven its ability to understand the complex, demystify the mysterious, and define the unknown. With more than 130 lawyers and offices in Los Angeles, New York, and Washington D.C., MSK is often distinguished as a “go-to” firm by industry and legal insiders, and has extensive experience in a variety of practice areas, including Entertainment & IP Litigation, Labor & Employment, Entertainment Transactions, Immigration, Corporate Securities, Regulatory, Tax, Trusts & Estates, Real Estate and International Trade. Relentlessly innovative, our lawyers have developed groundbreaking legislation, established influential precedents, and shaped the legal landscape. For more information, visit www.msk.com.
Intellectual Property

Multicolor Marks On Product Packaging Can Be Inherently Distinctive

Written by Alesha M. Dominique and Sofia Castillo

On April 8th, the U.S. Court of Appeals for the Federal Circuit, in In re Forney Industries, Inc., held that multicolor marks can be inherently distinctive when used on product packaging.

In 2014, Forney Industries (“Forney”), a company that manufactures tools and accessories for welding and machining, applied to register a multicolor mark for its packaging and labels consisting of a black banner immediately followed by the color yellow, progressively fading into red. The trademark examining attorney refused to register the multicolor mark after concluding it was not inherently distinctive, and required that Forney Industries submit “sufficient proof of acquired distinctiveness.” The Trademark Trial and Appeal Board (TTAB) affirmed the refusal, and Forney appealed to the Federal Circuit.

Continue reading “Multicolor Marks On Product Packaging Can Be Inherently Distinctive”

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COVID-19, Immigration

Immigration Proclamation Sets Limited Curbs

President Suspends Temporary Entry of Certain Immigrants Due to COVID-19 Economic Fallout

Written by David S. Rugendorf

On Wednesday evening, April 22, 2020, President Trump issued his highly anticipated immigration proclamation, temporarily suspending some types of immigration to the United States due to COVID-19 and its resultant damage to the domestic labor market. While the language of the order suggested that future actions may be necessary, the current order is very limited in its scope and application. Very few individuals are now prevented from entering the United States who had not previously been barred from entry. A summary of the order is as follows: Continue reading “Immigration Proclamation Sets Limited Curbs”

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Intellectual Property

A De Minimis Defense Grows in Brooklyn: Display of Street Art in Action Movie Not Infringement

Written by Eleanor M. Lackman and Theresa B. Bowman 

On March 30, 2020, in Blaney, et al., v. XYZ Films, et al., the U.S. District Court for the Eastern District of New York dismissed copyright infringement and false endorsement claims arising out of the depiction of a well-known Brooklyn mural in the dystopian, thriller motion picture Bushwick.  While the defendants undeniably filmed, and thus reproduced, the mural in the motion picture, the court held that such copying was both de minimis and fair use and therefore not copyright infringement.  In dismissing the false endorsement claims, the court determined that the defendants’ use of the mural created little risk of confusion that the murals’ creator and subject, both peace activists, endorsed the defendants’ motion picture.

The decision bolsters the ability of movie and TV production companies to depict, accurately and briefly, iconic or well-known community sites as part of background “establishing shots.”  Meanwhile, the outcome might inject some uncertainty into whether artists can pursue licensing revenue for works depicted in those films and TV shows.

Continue reading “A De Minimis Defense Grows in Brooklyn: Display of Street Art in Action Movie Not Infringement”

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Intellectual Property

NY Court Allows Use of Third-Party Photo Embedding, Thanks to Instagram’s Terms of Service

Written by Robert H. Rotstein and Timothy M. Carter

In the past few years, the advent of social media has increasingly tested the bounds of copyright law.  The issue of whether “in-line linking” or “embedding” constitutes actionable copyright infringement is no exception.

Early last week, in Stephanie Sinclair v. Ziff Davis, LLC, and Mashable, Inc., 1:18-cv-00790 (SDNY, April 13, 2020), Judge Kimba Wood held that Defendant Mashable did not engage in copyright infringement by embedding of Plaintiff photographer Stephanie Sinclair’s photograph “Child, Bride, Mother/Child Marriage in Guatemala” (the “Photograph”). The Court determined that Mashable used the Photograph, which was posted to Sinclair’s publicly viewable Instagram account, pursuant to a valid sublicense granted to Instagram by Sinclair.  Accordingly, Judge Wood granted Mashable’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on the grounds that Sinclair failed to state a claim for copyright infringement. Continue reading “NY Court Allows Use of Third-Party Photo Embedding, Thanks to Instagram’s Terms of Service”

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COVID-19, Labor & Employment

Accommodation Landmines Await

EEOC Issues New Guidance on COVID-19 Reasonable Accommodation and Return-to-Work Issues

Written by Jeremy Mittman and Corey Singer 

On April 17, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance for employers, providing further technical assistance about complying with workplace issues during and after the COVID-19 pandemic.

Many of the EEOC’s new Q&As for employers concern how to handle employees’ accommodation requests in light of the COVID-19 pandemic.  For instance, the agency advised that employers may ask questions or request medical documentation to determine if the employee has a “disability” under the Americans with Disability Act (“ADA”).  Employers also may forgo or shorten the “interactive process” and grant the accommodation requests, if necessary. Continue reading “Accommodation Landmines Await”

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COVID-19, Labor & Employment

Order Up!

California Provides Supplemental Paid Sick Leave For Food Sector Workers

Written by Jeremy Mittman and Stephen Franz

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20 (the ”Order”), which requires “hiring entities” with at least 500 employees in the United States to provide “food sector workers” with up to 80 hours of supplemental paid sick leave related to COVID-19.  The Order, effective April 16, 2020, is the second recent law in California providing paid sick leave to workers not covered by the federal Families First Coronavirus Response Act (“FFCRA”)(which requires employers with  fewer than  500 employees provide paid sick leave).  We previously reported on the Los Angeles emergency ordinance providing similar paid sick leave provisions for employees of larger employers not covered by the FFCRA.

Although the Order explicitly addresses “food sector workers”,  it is not necessarily limited to workers in the food industry.  The Order may apply to employers across all industries, if those employers have workers engaged in food services.  Consequently, all employers should carefully scrutinize the provisions of the Order to determine if they apply.  Here is what employers need to know about the Order: Continue reading “Order Up!”

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COVID-19, Cybersecurity, Regulatory

Contact Tracing: COVID-19

Written by Susan Kohn Ross and Timothy Carter

As the individual states struggle to define how best to reopen in a manner that minimizes the renewed spread of the novel coronavirus/COVID-19, the subject of contact tracing has become a major focus. To aid in this effort, Apple and Google announced late last week a joint contact tracing project that would leverage Bluetooth technology to identify and selectively alert individuals who have been in close proximity to someone who tested positive for COVID-19. Once alerted, that user could self-isolate or seek testing. Individuals who are diagnosed with COVID-19 can self-report their diagnosis, and any users who have been in recent contact with that individual will receive a notification. Public health agencies would be responsible for checking and verifying test results provided by users in order to prevent spoofing or fabrication. Continue reading “Contact Tracing: COVID-19”

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COVID-19, Immigration

Employer Expectations in COVID Conditions

Written by Frida P. Glucoft

Employers should beware: even during the COVID-19 pandemic, certain employer compliance and obligations continue and others are created.

NOTICE: if your work force is working from home and you have any individuals in H1B or E3 status, there are postings and notice requirements. There are technical rules which must be followed and documents to retain for the future when we return to the worksite.

TRAVEL BAN: the travel ban for entry to the USA from abroad remains in effect. The exception is for US citizens and lawful permanent residents and their families. In addition, many countries around the globe do not permit anyone but nationals of their own countries to enter.

Be sure your employees do not make travel arrangements without advising you well in advance. Continue reading “Employer Expectations in COVID Conditions”

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International Trade, Regulatory

CBP Authorizes Duty Payment Deferral

Written by Susan Kohn Ross

Update 4/23/20:
The official Federal Register notice authorizing the duty payment deferral option has been published – please see here. The comment deadline expires on May 20, 2020.

Update 4/20/20:
We noted in our Alert below that CBP stated the decision about whether or not to defer payment of duty had to be made by 11:59 PM today. CBP has now clarified that is 11:59 PM Eastern Time, and the deadline refers to the April Periodic Monthly Statement.

Also, CBP is now saying if the 301 duty exclusion covers the entire entry, the entry is eligible for the duty payment deferral option.

Original Alert:

Despite statements discounting the possibility, saner heads have prevailed and published late yesterday was an Executive Order issued permitting the Secretary of the Treasury to adjust the deadlines related to payment of duty. Executive Order re Duty Payment Deferral.  On that basis, CBP announced a 90 day postponement of duty payment is possible. First, in CSMS 42423171, CBP made clear the option to postpone duty payment for 90 days exists for many entries filed in March and April 2020. However, if the entry involves antidumping duty, countervailing duty, and/or Section 201, 232 or 301 duties, duty payment deferral is not available. While not obvious from the publications available to date, if your goods are subject to a 301 tariff but you have an exclusion, CBP has verbally advised you are not eligible for duty payment deferral. Many more questions are likely and CBP is holding a second briefing with the trade community this morning. The first such briefing took place yesterday evening. During that briefing, CBP indicated the duty deferral decision had to be made before 11:59 p.m. tonight. This is understood to refer to duty payments due today, April 20, 2020. Make sure to consult with your customs broker, but do not be surprised if many are unsure about the application of this newly announced program, due to the timing of its rollout. Continue reading “CBP Authorizes Duty Payment Deferral”

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