With a law going into effect on March 1, 2022, the state of Colorado will become the first state to criminalize, as a Class 2 misdemeanor, the use of “void” non-compete agreements (i.e., restrictive covenants).
Under the laws of Colorado, a non-compete is “void” unless it relates to a contract: (1) for the purchase and sale of a business (or its assets), (2) for the protection of trade secrets, (3) for the recovery of expenses of educating and training an employee, or (4) for executive/management personnel.
Under the new law, asking an employee to sign a restrictive covenant that does not fall into one of the four categories above can subject the offending employer to up to 120 days imprisonment, a $750 fine, or both.
This law does not, however, expand any of the existing laws, but rather implements a criminal penalty for violating the existing statutes governing non-competes.
For any additional employment or labor related questions, please call the attorneys at Assouline & Berlowe, P.A.
The Local Rules for the Middle District of Florida are strict as to font and size. Details about the requirements are provided below. Always make sure to look at local rules before filing, including the Florida appellate courts.
Local Rule 1.08 provides what is allowed in 14 point font, and then the exception:
Book Antiqua Calisto MT Century Schoolbook Georgia Palatino
Scale: 100% Spacing: Normal Position: Normal
(b) ANOTHER PERMISSIBLE TYPEFACE. Times New Roman is permitted if the main text is at least 14-point, an indented quotation is at least 13-point, a footnote is at least 12-point, and the paper otherwise complies with (a).
An examples of a recent Middle District opinion is provided for download.
Assouline & Berlowe is proud to announce that Partner and Registered Patent Attorney Greg Popowitz has earned board certification from The Florida Bar in Intellectual Property Law. Greg joins a group of only 140 board-certified Florida lawyers in the Intellectual Property practice area.
According to The Florida Bar, only 7% of eligible Florida attorneys have earned board certification in one or more of the bar’s 27 specialty areas. Board certification recognizes attorneys’ special knowledge, skills, and proficiency in their areas of the law and their professionalism and ethics in practice. Board-certified lawyers must have a minimum of five years in law practice, pass an examination specific to their area of practice, undergo a peer review assessment of their competence and character, and satisfy continuing legal education requirements. Greg joins fellow Assouline & Berlowe partner Ellen Leibovitch, who is board-certified in Labor and Employment Law.
Greg, who practices in the firm’s Fort Lauderdale office, helps clients protect their inventions, brands, and other creations using patent, trademark, and copyright law. Greg is a Registered Patent Attorney and he helps secure patents and trademarks before the United States Patent & Trademark Office (USPTO), along with work relating to licensing, co-existence agreements, evaluating new inventions, brands, and technology, clearance searches, and litigation. Greg enjoys counseling clients on the various mechanisms available to protect their Intellectual Property, which ultimately adds value to their business.
Greg earned his J.D. from Nova Southeastern University School of Law and his B.S. in Mechanical Engineering from the Georgia Institute of Technology (Georgia Tech).
For more information about Intellectual Property issues, please contact Greg M. Popowitz, Esq.
On June 30, 2020, the United States Supreme Court, in an opinion authored by Justice Ginsburg in “United States Patent and Trademark Office v. Booking.com B.V.,” decided that “Booking.com” was a name that was eligible for federal trademark registration. In doing so, the Court rejected the United States Patented Trademark Office’s (USPTO) “nearly per se rule” and instead held that the proper standard of whether a term is “generic,” depends on “whether consumers in fact perceive that term as the name of a class or, instead, as a term capable of distinguishing among members of the class.”
To be eligible for trademark registration under the Lanham Act, a mark must be sufficiently “distinctive” meaning that “the goods of the applicant may be distinguished from the goods of others.” “Distinctiveness,” should be viewed on a spectrum. On one end are the most distinctive marks, “arbitrary” (‘Camel cigarettes’), ‘fanciful’ (‘Kodak’ film), or ‘suggestive’ (Tide laundry detergent).” . On a lower part of the spectrum are “descriptive” marks, which by themselves are not eligible for trademark registration. Instead, the mark must have acquired distinctiveness, meaning that “in the minds of the public,” the mark is significant. Finally, the lowest portion of the “distinctive” spectrum is “generic.” This refers to marks such as the name of the good itself (e.g. “wine”).
Though the word “booking” on its own would likely fall into the generic portion of the distinctiveness spectrum, adding “.com” pushes the mark to “descriptive.” As the Court explained, “whether ‘Booking.com’ is generic turns on whether that term, taken as a whole, signifies to consumers the class of online hotel-reservation services.” Thus, the Court would need to make a finding that consumers construe “booking.com” to represent not one hotel reservation service, but instead the class of hotel reservation services. The Supreme Court stated simply that they accepted the lower court’s findings that consumers do not perceive “Booking.com” in this manner, and as such, “Booking.com” is not generic. On this finding alone, the Court found this case could be resolved.
The PTO disagreed, and attempted to argue for the following rule,
“when a generic term is combined with a generic top-level domain like “.com,” the resulting combination is generic. In other words, every “generic.com” term is generic according to the PTO, absent exceptional circumstances.”
The PTO advocated for this rule relying on the same line of logic of the matter of, “Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co.” In the PTO’s argument, that case stands for the proposition that adding the word “company” to a generic word does not confer trademark eligibility. The PTO argued that the word “company” and “.com” should be treated exactly the same.
The Court soundly rejected this argument, pointing out that only one entity may occupy a particular domain name, unlike adding the word “company” or “incorporated”. Thus, adding “.com” infers to consumers that this is a “specific entity.” Additionally, the Court found that the rule from the Goodyear’s case (referenced above) as articulated by the PTO was mistaken. The Court explained, “Instead, Goodyear reflects a more modest principle, harmonious with Congress’ subsequent enactment: A compound of generic elements is generic if the combination yields no additional meaning to consumers capable of distinguishing the goods or services.”
What is crucial to note, is that the Court did not instead adopt another “per se” rule, that adding “.com” to the end of a generic word will always guarantee trademark registration eligibility for the mark. Instead, the Court would require parties to show evidence that the public would in fact see that mark as “distinguishing.” To make this determination, the Court stated that the type of evidence to be considered should be “consumer surveys, . . . dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceive a term’s meaning.”
Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 210–211, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000).
For any questions about the case or how to handle your trademark strategy, please contact our office below.
This article was written by Emilio E. Rodriguez, Legal Intern for Assouline & Berlowe PA (under the direction of Partner Greg Popowitz). Emilio is a student at the University of Miami Law School.
WASHINGTON, D.C. – According to the American Bankruptcy Institute (“ABI”), the Senate has now included certain provisions in the $2 Trillion “Coronavirus Aid, Relief and Economic Security Act” (“CARES Act”) in order to provide greater access to bankruptcy relief. The Act, goes to the House, and , if passed, to President Trump.
According to ABI, certain provisions within Sect. 1113 of the CARES Act include:
Amendments to the newly created Small Business Reorganization Act of 2019 (SBRA) to increase the eligibility threshold for businesses filing under new subchapter V of chapter 11 of the U.S. Bankruptcy Code from $2,725,625 of debt to $7,500,000. The eligibility threshold will return to $2,725,625 after one year. The increased debt limit for struggling small businesses to access subchapter V reflects recommendations of ABI’s Commission to Study the Reform of Chapter 11.
Amending the definition of “income” in the Bankruptcy Code for chapters 7 and 13 to exclude coronavirus-related payments from the federal government from being treated as “income” for purposes of filing bankruptcy.
Clarifying that the calculation of disposable income for purposes of confirming a chapter 13 plan shall not include coronavirus-related payments.
Explicitly permitting individuals and families currently in chapter 13 to seek payment plan modifications if they are experiencing a material financial hardship due to the coronavirus pandemic, including extending their payments for up to seven years after their initial plan payment was due.
The bankruptcy provisions of the CARES Act listed above sunset within a year of the legislation being enacted.
Additionally, Sect. 3513 of the legislative package provides temporary relief for federal student loan borrowers by requiring the Secretary of Education to defer student loan payments, principal, and interest for 6 months, through September 30, 2020, without penalty to the borrower for all federally owned loans. This provides relief for over 95 percent of student loan borrowers.
COVID-19 and Florida’s Small Business Emergency Bridge Loan Program
Available until May 8, 2020 to small businesses established before March 9, 2020, and limited to only those businesses having between 2 to 100 employees and maintaining its principal place in Florida, businesses that have suffered economicloss can apply to the State of Florida for a one-year short-term, interest-free loan for working capital. The loans bridge the gap until sufficient profits from normalized business operations, payments from insurance claims, or federal disaster assistance are received. The Program has helped more than 4,750 small businesses statewide to receive more than $157.5 million in assistance
The loans are for up to $50,000; but in special cases, may be up to $100,000.
Although interest free in the first-year, any unpaid balance thereafter is subject to a 12% per annum interest rate; and any default is subject to normal collection processes.
Below is the official Press Release from Florida’s Department of Economic Opportunity
Governor Ron DeSantis Activates Emergency Bridge Loan Program for Small Businesses Impacted by COVID-19
Mar 16, 2020
Tallahassee, Fla. – Today, Governor Ron DeSantis activated the Florida Small Business Emergency Bridge Loan Program to support small businesses impacted by COVID-19. The bridge loan program, managed by the Florida Department of Economic Opportunity (DEO), will provide short-term, interest-free loans to small businesses that experienced economic injury from COVID-19. The application period opens tomorrow, March 17, 2020 and runs through May 8, 2020.
“As we mitigate against the spread of COVID-19, the health, safety and well-being of Floridians comes first,” said Governor DeSantis. “I understand the harm mitigation strategies will have on small businesses throughout our state. By activating the Florida Small Business Emergency Bridge Loan, we are providing the opportunity for Florida’s small businesses to receive cash immediately to ensure they can lessen the impacts felt as a result of COVID-19.”
DEO will administer the Florida Small Business Emergency Bridge Loan Program in partnership with the Florida SBDC Network and Florida First Capital Finance Corporation to provide cash flow to businesses economically impacted by COVID-19. The short-term, interest-free loans help bridge the gap between the time the economic impact occurred and when a business secures other financial resources, including payment of insurance claims or longer-term Small Business Administration (SBA) loans. Up to $50 million has been allocated for the program.
“Governor DeSantis has been a true leader in the fight to prevent the spread of COVID-19 and has prioritized the safety of all Floridians,” said Florida Department of Economic Opportunity Executive Director, Ken Lawson. “The Florida Small Business Emergency Bridge Loan will help Florida’s small businesses get through this unsettling time. We appreciate the Governor’s efforts to keep Florida’s small businesses top of mind and our partners at the Florida SBDC Network and Florida First Capital Finance Corporation to help them recover.”
Small business owners with two to 100 employees located in Florida affected by COVID-19 can apply for short-term loans up to $50,000. These loans are interest-free for up to one year and are designed to bridge the gap to either federal SBA loans or commercially available loans. DEO will work with every borrower to ensure that repayment of the loan isn’t an overwhelming burden. To be eligible, a business must have been established prior to March 9, 2020 and demonstrate economic impacts as a result of COVID-19.
“Mitigating the spread of COVID-19 in Florida must be our number one priority,” said Florida SBDC Network CEO, Mike Myhre. “The Florida SBDC Network stands ready to assist Governor DeSantis and the Florida Department of Economic Opportunity to help small businesses recover as a result of the impacts of COVID-19.”
“We are ready to assist the Governor and state of Florida to deliver this vital assistance to the small business community we serve, as we have 23 times since 1992,” said Florida First Capital Finance Corporation President and CEO, Todd Kocourek.
DEO is currently surveying businesses throughout the state of Florida who have been impacted by COVID-19. Businesses and non-profits can access the Business Damage Assessment survey at FloridaDisaster.BIZ Select “COVID-19” from the drop-down menu on the survey page. Response to the Business Damage Assessment survey is not an application for assistance. Businesses interested in the bridge loan program must fill out a bridge loan application.
For more information on the program, visit www.floridadisasterloan.org. For questions regarding the Emergency Bridge Loan Program, contact the Florida Small Business Development Center Network at 866-737-7232 or email Disaster@FloridaSBDC.org. The phone line will be answered during regular business hours; all voice mails and emails will be responded to within 24 hours.
The Florida Small Business Emergency Bridge Loan Program is currently available to small business owners located in all Florida counties statewide that experienced economic damage as a result of COVID-19.
These short-term, interest-free working capital loans are intended to “bridge the gap” between the time a major catastrophe hits and when a business has secured longer term recovery resources, such as sufficient profits from a revived business, receipt of payments on insurance claims or federal disaster assistance.
The Florida Small Business Emergency Bridge Loan Program is not designed to be the primary source of assistance to affected small businesses, which is why eligibility is linked pursuit to other financial sources. Note: Loans made under this program are short-term debt loans made by the state of Florida using public funds – they are not grants. Florida Small Business Emergency Bridge Loans require repayment by the approved applicant from longer term financial resources.
Designated Disaster Areas: All Florida counties statewide per Executive Order 20-52.
Qualified Applicant: Applications will be accepted by qualified for-profit, privately held small businesses that maintain a place of business in the state of Florida. All qualified applicants must have been established prior to March 9, 2020, and suffered economic injury as a result of the designated disaster. Qualified small business applicants must be an employer business with 2 to 100 employees.
Amount: Up to $50,000 per eligible small business. Loans of up to $100,000 may be made in special cases as warranted by the need of the eligible small business.
Term: 1 year.
Limitation: Only one loan may be made per eligible business. All previous bridge loans received MUST be paid in full.
Interest Rate: Loans will be interest-free for the loan term (1 year). The Interest rate will be 12% per annum on the unpaid balance thereafter, until the loan balance is repaid in full. Loan default is subject to a normal commercial collection process.
Application Period: Applications will be accepted by qualified Florida small businesses under this program through May 8, 2020, contingent on the availability of funds.
To submit completed applications and required documents, send by mail or courier to: Florida SBDC Network Headquarters, C/O Florida Emergency Bridge Loan Process, 220 West Garden Street, Suite 301 Pensacola, Florida 32502. Applicants may also submit applications and required documents via email to Disaster@FloridaSBDC.org or by fax to (850) 696-2693.
For assistance in completing the application, contact your local Florida Small Business Development Center (SBDC) office. To locate your local Florida SBDC visit www.FloridaSBDC.org/locations or contact us toll-free (866) 737-7232
For questions regarding the Emergency Bridge Loan Program, please contact the Florida Small Business Development Center (SBDC) Network Headquarters. Email: Disaster@FloridaSBDC.org. Phone toll-free: (866) 737-7232.
About the Emergency Bridge Loan Program
The Florida Small Business Emergency Bridge Loan Program was first activated following Hurricane Andrew in 1992. It has been activated 26 additional times following disasters and has helped more than 4,750 small businesses statewide to receive more than $157.5 million in assistance.
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.
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.
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.
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.