Mobile/Gaming Patent Presentation by Peter Koziol (3/3/2020)

CLE

Registered Patent Attorney and Partner Peter Koziol will be presenting an audio webcast on March 3, 2020 (at noon) on the subject of Mobile Applications, Gaming and Entertainment Patent Law.  To sign up to attend the presentation, click here.  Presented by  the Entertainment, Arts, and Sports Law (EASL) section of the Florida Bar, the one hour CLE will provide Technology Credit, which is a relatively new requirement for Florida attorneys.

Peter is a seasoned Intellectual Property attorney that handles the prosecution and litigation surrounding patents, trademarks, copyrights, and trade secrets.  Peter has developed a unique skill set regarding application/software related patents given his background in software engineering and his litigation surrounding software patents.

For any questions about the presentation and Intellectual Property, contact Peter Koziol and the Intellectual Property team at Assouline & Berlowe.

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower #135

Boca Raton, Florida 33431

Main: 561.361.6566

http://www.assoulineberlowe.com/

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BANKRUPTCY LAW – Small Business Reorganization Act, New Interim Rules Released

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The United States Bankruptcy Court for the Southern District of Florida, through its Chief Judge, Laurel M. Isicoff, issued several updates tonight regarding the new Small Business Reorganization Act (SBRA), which goes into effect TOMORROW!

As stated by the Chief Judge: “The SBRA creates a new subchapter V of chapter 11 for the reorganization of small business debtors.  It does not repeal existing chapter 11 provisions regarding small business debtors, but instead creates an alternative procedure that small business debtors may elect to use.”

The Court further stated that: The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has promulgated Interim Rules and Form Amendments to the Federal Rules of Bankruptcy Procedure as a result of the passage of the Small Business Reorganization Act.

Among the numerous orders, is Administrative Order 2020-02 In re: Adoption of Interim SBRA Bankruptcy Rules.  This is an important set of rules that bankruptcy practitioners in the Southern District of Florida must follow.

Amended Official Forms 101, 201, 309E (renumbered 309E1), 309F (renumbered as 309F1), 314 (use Local Form LF-33), 315, and 425A, and new Official Forms 309E2, and 309F2 become effective February 19, 2020. For changes in the Bankruptcy Forms please visit: https://www.uscourts.gov/rules-policies/pending-rules-and-forms-amendments/pending-changes-bankruptcy-forms.

Additional SBRA Resource:

A Guide to the Small Business Reorganization Act of 2019” by U.S. Bankruptcy Judge Paul W. Bonapfel Northern District of Georgia.

Eric N. Assouline, Esq.

 

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Spring Training – Sponsorship of Little League Baseball

Miami – Competition is at the heart of any lawyer. It is natural that advocating for a client will require a competitive advancement of a position. As part of a long tradition of supporting organizations in the community, Assouline & Berlowe has sponsored and continues to sponsor a little league baseball team. Here is the start of another season of the “boys of summer”.

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“Brand” New Trademark Rules Starting 2/15/2020

TMThe United States Patent and Trademark Office (USPTO) will not issue a federal trademark registration without the applicant first proving the mark (brand) being protected is actually being used in commerce.  Whether the proof is submitted with the initial application (for actual use applications) or later in the application process (for intent to use applications), the applicant will need to submit specimen of use for the  brand.  The types of evidence varies depending on the type of class associated with the brand.  For products, the specimen must be on the product itself, the packaging, or manuals.  While service based classes can use marketing materials, such a flyers, websites, and signage.

On February 15, 2020, the USPTO is updating the rules of specimen that are submitted to prove use in commerce.  The rules are becoming stricter.  For goods, the goods themselves must be included with the packaging, labels, or displays.  For apparel, hang tags or labels must actually be connected to the apparel, not merely next to the products.

Screen shots of websites showing the mark and detailing the services provided have been relatively standard as specimen over the years.  Under the new rules, any such screenshots will now require the URL and a date of the screen print.

The purpose behind the new rules is to prevent the submission of fraudulent specimen for marks that actually are not in use.  This is why digital images and mock ups of marketing materials are often rejected by the USPTO.

While the purpose of the rules is to help thwart fraud, one of the rule updates requires the inclusion of an applicant’s email address, not only the attorney’s email address.  This was optional in the past.  There is a known issue with companies mining the USPTO public records for applicant physical addresses and mailing official looking invoices that mislead applicants to pay fees that provide little to no value.

While the intent of the USPTO to require applicant email addresses is to help communication channels between the USPTO and applicants, the result will be greater access to applicants to those companies that mine USPTO databases trying to mislead applicants directly.  As a result of significant push back from practitioners and the public at large, the USPTO is presently looking at ways to “mask” the applicant’s email addresses from public viewing.

For any questions about the new trademark rules or to look into protecting your brands, contact Greg Popowitz.

Greg M. Popowitz, Esq.

Registered Patent Attorney / Partner

Intellectual Property Litigation

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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HAPPY 17th ANNIVERSARY to ASSOULINE & BERLOWE!

MIAMI – Assouline & Berlowe, P.A., The Business Law Firm, is pleased to announce that today it is celebrating its 17th Anniversary.

Started on February 10, 2003, through humble beginnings, in a small subleased space in Coral Gables, Assouline & Berlowe has weathered the many business climate changes and challenges of the past two decades.

Assouline & Berlowe is proud of its contributions to its communities in the tri-county area, as part of its presence with offices in Miami, Ft. Lauderdale/Dania Beach, and Boca Raton.  Assouline & Berlowe regularly supports both its legal community and numerous charitable organizations alike.

Assouline & Berlowe is strategically positioned to continue its expansion as a strong player in South Florida’s international business environment.

To all those that we have worked with in the past and to those we hope to work with in the future, we say thank you.

Layout 1Circa. Feb.10,2003

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You Thought All Settlement Offers Were Confidential?

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Photo by Alexander Mils on Pexels.com

That is not the case if the settlement offers show the case was litigated in an unreasonable manner. Federal Rule of Evidence 408 protects settlement communications.  The purpose being to encourage litigants to communicate and work on resolving the claims of the case.  Like most rules, there are exceptions.

Enter Blackbird Tech LLC v. Health in Motion LLC, 2018-2393 (Fed. Cir. Dec. 16, 2019).  Blackbird sued Health in Motion (“HIM”) and Leisure Fitness Equipment LLC (“Leisure”) for patent infringement regarding exercise equipment.  After 19 months of litigation, Blackbird voluntarily dismissed the lawsuit, with prejudice, and executed a covenant not to sue.  Shortly thereafter, the Defendants moved for attorneys’ fees under 35 U.S.C. 285, which allows an award of attorneys’ fees in patent cases to the prevailing party in “exceptional cases”.  The District Court granted attorneys’ fees and expenses in the amount of $363,243.80, which Blackbird appealed.

The Federal Circuit, which streamlines patent decisions of the district courts, affirmed the decision, holding the District Court did not abuse its discretion due to the way Blackbird litigated the case.  During the course of the litigation, Blackbird had a peculiar settlement strategy of decreasing offers that stood out.  The first offer was $80,000, then $50,000, then $15,000, and finally a walk-away offer of zero.  Defendants rejected all the offers.  The Federal Circuit analyzed the settlement offers and the nature of the decreasing offers, each of which were “significantly less than the cost of litigation.”  The Federal Circuit viewed the offers with suspicion.

The District Court also found that Blackbird unreasonably “delayed in producing documents, withheld many documents until after [Appellees] took [Blackbird’s] deposition[,] and completely failed to produce other responsive documents.”  Lastly, Blackbird unreasonably “filed a notice of dismissal, covenant not to sue, and motion to dismiss without first notifying [Appellees’] counsel, on the same day pretrial submissions were due and shortly before [Appellees’] motion for summary judgment was to be decided.”

While all of the issues led to the exceptional fee award due to Blackbird’s abusive litigation, the unique aspect was the court’s ability to open the window into settlement offers to demonstrate the abusive litigation tactics.  Blackbird’s settlement demands were far less that the anticipated cost of defense, which Blackbird admitted, and equated to mere “nuisance value settlement offers.”  While most settlement offers and negotiations are closed from public view, the court may open that door to assess whether attorneys fees can be awarded in exceptional cases.

For any questions about trademarks, patents, or copyrights, contact Greg Popowitz.

Greg M. Popowitz, Esq.

Registered Patent Attorney / Partner

Intellectual Property Litigation

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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BANKRUPTCY – China Finally Starts to Embrace Bankruptcy, U.S. Style, to Cushion a Slowing Economy. Wall Street Journal.

https://www.wsj.com/articles/china-embraces-bankruptcy-u-s-style-to-cushion-a-slowing-economy-11573058567?reflink=share_mobilewebshare

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