Category Archives: Copyright

Copyright Law – Supreme Court to Address Recoverable Costs

The Supreme Court of the United States has granted a petition for certiorari in the case styled as Rimini Street, Inc. v. Oracle USA Inc. in order to address split between the circuits as to the types of “costs” that may be recovered under the Copyright Act. 

As framed by the briefs in the case, Question Presented by the petitioner is: Whether the Copyright Act’s allowance of “full costs,” 17 U.S.C. § 505, to a prevailing party, is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821, as the U.S. Courts of Appeals for the 8th and 11th Circuits, have held, or whether the Act also authorizes non-taxable costs, as the U.S. Court of Appeals for the 9th Circuit held.

Currently, there are three (out of twelve) federal circuit courts of appeal which allow certain costs to be recovered.  Those circuits are the First, the Sixth, and the Ninth.  The federal circuit courts of appeal that do not allow recovery of these costs are the eighth and the eleventh (which controls all cases filed in Florida). 

The result of this decision may change the law in the Eleventh Circuit, as to what costs are recoverable under the Copyright Act.

 

ERIC N. ASSOULINE, ESQ.

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Miami Tower, 100 SE 2nd Street, Suite 3105, Miami, Florida 33131

 Intellectual Property, Labor & Employment Law,  Real Estate, International Dispute Resolution, Commercial Litigation, Corporate Law, and Bankruptcy

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Happy World Intellectual Property Day!

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April 26 marks World Intellectual Property Day.  At Assouline & Berlowe, we have built a team of Intellectual Property (IP) attorneys that handle a wide range of IP issues that impact many aspects of business.  Most people (including attorneys) do not realize how often IP crosses into all areas of business, from employment law (trade secrets), business sales (IP due diligence), to bankruptcy (inventory and valuation).  IP creates valuable assets for businesses because the IP allows the IP owner to stop others from either using their protected IP without their consent.  IP is a powerful tool that could prevent copying, or monetize IP through licensing deals.  On the other hand, infringing someone else’s IP can be a significant liability for an unprepared business.

The Assouline & Berlowe IP team, including 3 registered patent attorneys, is well equipped to handle all aspects of IP prosecution and litigation.  Our IP team routinely files applications to secure patents, trademarks, and copyrights for clients.  Assouline & Berlowe handles IP in a wide range of industries, including alcoholic beverages, mattresses, transportation, cellular technology, security, and celebrities/influencers.  The IP team is highlighted below:

Peter Koziol co-chairs the firm’s IP litigation department.  Peter handles a wide range of IP, especially related to his background in computer science.  In 2017, Peter was lead counsel on approximately 15% of new patent litigation in the Southern District of Florida.  A majority of this patent litigation centered upon software based patent(s).  Peter is also well versed in drafting licensing agreements and co-existence agreements that relate to IP.  Peter is also equipped in handling IP prosecution, with an emphasis in software related IP.

Loren Pearson handles all aspects of domestic and international patent, trademark, and copyright applications.  His work includes evaluating new technologies for patentability, portfolio counseling, and intellectual property registration, prosecution, and litigation.  Loren has a background in chemical and material science, which aids in his ability to tackle complex inventions.  He is also knowledgeable with licensing agreements, opposition proceedings before the Trademark Trial and Appeal Board (TTAB), infringement opinions, to name a few.

Greg Popowitz handles both IP prosecution and litigation.  His background in mechanical engineering and the automotive industry gives a unique perspective on mechanical based products and processes.  Greg handles the IP for an established adult beverage company, along with a wide range of small businesses and entrepreneurs.  Greg is able to assess the client’s needs and tailor fit a custom plan to properly protect and maintain the client’s IP.

Assouling & Berlowe’s IP team has a wide range of competencies to assist businesses with their IP needs.  Whether you need to secure IP protection for your intangible assets, monetize IP you already own, or purchase/license IP, the IP team at Assouline & Berlowe is well equipped to handle your IP needs.

Below is an inventory of the hundreds of patent and trademark applications and registrations handled by the IP Team at Assouline & Berlowe.  This does not include the hundreds of other marks and patents that have been addressed by Assouline & Berlowe attorneys, either from the standpoint of enforcement, counseling, and means of protection.  Over the years, some applications/registrations are abandoned for various business purposes.

PATENTS

pat1

pat2

pat4

pat3

TRADEMARKS

TM12

TM11

TM10

TM9

TM8

TM7

TM5

TM6

TM4

TM3

TM2

TM1

TM13

#worldipday

For any Intellectual Property questions, please contact our offices below.

ASSOULINE & BERLOWE, P.A.

Miami: (305) 567-5576

Fort Lauderdale: (954) 929-1899

Boca Raton: (561) 361-6566

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment, Creditors’ Rights & Bankruptcy, Business Litigation, Corporate & Finance, Real Estate, International Law

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“My Other Bag” is a Louis?

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Isn’t the point of a parody to be funny? “Weird Al” Yanovich is well known for his music that makes fun of popular artists/music, such as  Amish Paradise, a parody of Coolio’s Gangsta’s Paradise, and Eat It, a parody of Michael Jackson’s Beat It.   Weird Al is so well known that his successful fair use defense of copyright litigation has become a leading case on musical parody.

Fast forward to Louis Vuitton (“LV”), the Paris based luxury hand bag brand company.  Consumers world wide know the LV brand and the status behind “Having a Louis”.  LV claimed copyright and trademark infringement by My Other Bag (“MOB”), a California based entity.  In a recent decision, the Second Circuit Court of Appeals affirmed summary judgment in favor of MOB.

MOB created a series of handbags where one side of the bag had a similar pattern of famous handbag company brands and the other side said “My Other Bag”.  In this case, MOB imitated LV’s interlocking L and V letters with interlocking M, O, and B letters.  Needless to say LV did not appreciate the similarity of the style and design of its famous mark.

With respect to likelihood of confusion with LV’s brands, the court noted differences between LV and MOB’s design, lack of market proximity, and lack of actual confusion.  From a dilution standpoint, the court said MOB’s bags are a parody of LV’s bags, bringing them within the fair use exclusion of trademark dilution. The critical point was that MOB was not using LV’s brands solely to increase their own sales by confusing consumers that MOB’s bags are associated with LV’s bags.  To the contrary, MOB was using LV’s well known brand and images as a parody because it was clear MOB was not trying to pass off their bags as LV produced bags.  Consumers would know they were buying a MOB bag, not a LV bag.

While a trademark owner has obligations to police their brand, trademark owners should carefully weigh all factors before bringing suit.  In this case, the parody fair use defense was strong for MOB, along with other factors.  More importantly, LV helped market MOB’s products by instituting this action and bringing more attention to the alleged infringement.  Now, “My Other Bag”, with the help of LV, has gained notoriety in the hand bag industry.  But they have a far way to go to compete with Weird Al.

Greg M. Popowitz, Esq.

Registered Patent Attorney

AV Rated by Martindale-Hubbell

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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GREG POPOWITZ – A New Law Partner, Engineering the Firm’s Success

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Patent Attorney Greg Popowitz, Litigation Partner Eric Assouline, and Legal Assistants Ana Hesny and Juliana Alvarez all toast to Greg Popowitz’s promotion to Partner at Assouline & Berlowe, P.A.

Being an attorney was never in his long term plans.  Growing up in South Florida, Greg Popowitz helped his father build wood projects around the house.  He also had the opportunity to take a Manufacturing class in junior high school.  Being able to construct (and sometimes deconstruct) projects took him down a path towards engineering.   Greg loved being able to see how things work, whether it was a simple mechanical pencil or changing the rotors on an automobile’s brakes. 

With that in mind, Greg applied to the prestigious Georgia Institute of Technology, in Atlanta, Georgia (or “GT” for short).  Greg started his freshman year of college in 1998 and chose to major in mechanical engineering. 

At Georgia Tech, Greg learned about the complexities of design, manufacturing, and failure analysis, just to name a few.  He also learned how important it was to work in a team environment.  Georgia Tech’s diverse student body afforded Greg the opportunity to work with students across the country and the world.  Greg also learned how to effectively manage his time given the highly technical and aggressive curriculum.  The study skills Greg acquired at Georgia Tech would pay handsome dividends for Greg down the road in law school. 

After graduating from Georgia Tech in 2002, Greg began to work for Visteon Corporation, a former subsidiary of Ford Motor Company.  Greg worked on drive shafts in the driveline systems division, based near the Motor City, Detroit Michigan.  Greg’s first rotation at Visteon started in the plant where he worked as a product engineer on current model designs.  Greg was involved in troubleshooting both design and manufacturing issues, which included Six Sigma principles.  Greg presented his findings to high level executives at Ford Motor Company.  Greg also worked on forward model designs, where he conducted durability tests and helped launch the driveshaft for the 2005 Ford Mustang. 

During his time at Visteon, a colleague received a patent on a new driveshaft that used a “slip in tube” design.  Greg started asking questions about patents and how a patent protects new inventions.  Greg spoke to Visteon’s in-house counsel, who happened to be a registered patent attorney.  For the first time, this sparked Greg’s interest in attending law school in order to become a patent attorney. 

In 2006, Greg applied and was accepted at Nova Southeastern Law School (NSU).  Greg also took and passed the patent bar exam in order to become a registered patent agent.  Greg interned at an Intellectual Property law firm in order to learn the practical sides of patent law. 

While interning, Greg saw firsthand how important a well crafted patent is when challenged in major patent litigation.  At NSU, Greg also had the opportunity to interview both George McGovern and John Anderson, former Presidential candidates.

After graduating from NSU (cum laude) and becoming a registered patent attorney, Greg worked at a large Florida law firm handling complex mortgage related litigation.  While the work was challenging, Greg quickly learned he wanted to focus more of his practice on IP and have more direct access to help clients on the front lines. 

Then, Greg accompanied his wife, Bankruptcy Attorney Ashley Popowitz, to a lunch, where he met Ashley’s friend and colleague, Eric Assouline.  Eric and Greg, who both shared an immense love for cars, immediately hit it off.  Eric wanted to find a way that Greg could add to the already highly talented IP and commercial litigation team at Assouline & Berlowe, P.A.

In 2013, Greg was offered an associate position at the Firm.  Greg’s practice centered on two main practice areas:  patent, trademark, and other related Intellectual Property prosecution matters; and commercial and business litigation matters.  On the IP side, Greg was able to speak to clients from the initial intake to delivering a registered trademark or issued patent.  Greg has seen small businesses grow and become recognized brand names.  Greg has been able to play a small role in helping businesses and entrepreneurs protect their inventions and brands and also create assets in the form of IP.  On the litigation side, Greg has been able to help clients bring a wide array of claims and also assist clients in defending similar claims.  While each case is different, Greg has learned to assess the nature of the case and help the firm’s clients achieve their long term goals.  Greg has also been involved in a handful of appeals involving the firm’s cases, which has allowed him to work closely with Eric Assouline to assist in writing appellate briefs regarding orders and judgments involving our clients. 

In April 2018 Greg will already be with Assouline & Berlowe for five years.  Greg has learned a great deal during his limited time at Assouline & Berlowe and he is surrounded by a wealth of talented attorneys and staff geared towards helping the firm’s clients maximize their results.  

Assouline & Berlowe is honored to promote Greg Popowitz to Partner and we are all excited to see how Greg can continue to engineer his and the firm’s success for years to come. 

Keep up the Good Work Greg!

#popowitzpartner

 

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Protect Your Tech: Florida Bar CLE Edition

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Earlier this month, I had the distinct pleasure to present at the Florida Bar Basic Technology CLE about how businesses, and their lawyers, can protect technology using Intellectual Property.  This was the first time a Florida Bar Basic CLE was focused on technology.  To keep the CLE interactive, the presentations included live tweeting using the #CLEHistory hashtag, interactive polls with the audience, and post presentation video outtakes.  The interactive nature of the CLE was perfect for a technology focused CLE.

My portion of the CLE focused on how technology is used protect intellectual property, with the focus on patents.  There are several options when determining how to use patent law to protect technology, from design patents to provisional and non-provisional utility patents.  There are key timetables and strategic considerations to assess when protecting your technology, both before and after the technology is finalized.

One of the interactive questions, pictured below,  I posted to the live audience was whether someone could put “patent pending” on a product as soon as a patent application was filed.  The question was posted during my presentation and the audience texted their results to get an immediate response to the question.  36% of the audience correctly chose the right answer of A – Yes.  Meaning you can put patent pending on a product as soon as you file a patent application.  However, the application must remain active, i.e. not abandoned, to continue marking the product as “patent pending.”  Notably, 44% of the audience thought patent pending depended on what type of patent application was filed.  This is not accurate as it does not matter if the patent application is design, provisional, or non-provisional.

assouline & belrlowe, interactive polling

There are many misconceptions about patent law and it is important to consult with a registered patent attorney to review your technology and plan to maximize your protection.  It was an honor to speak at the first Florida Bar Basic Technology CLE and I enjoyed the interactive nature of the CLE.  Check the Florida Bar CLE page as the Technology CLE will be available for download in the near future.

For questions about Intellectual Property matters involving Technology, contact  Greg Popowitz below.

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment, Creditors’ Rights & Bankruptcy, Business Litigation, Corporate & Finance, Real Estate, International Law

Miami • Ft. Lauderdale • Boca Raton

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DRONE ON: Will UAV Pilots Fly At Their Own Risk Under New FAA Rules?

UAV

You don’t hear the silent rotors of the 4-armed drone flying above your backyard as you sunbath au natural. The $4k camera, however, records in vivid detail everything you’re doing and streams 1080p video to a videographer in a car more than a mile away. Next thing you know, you are an unwilling YouTube sensation.

You’re driving your car south on Biscayne Boulevard, talking to your office on your Bluetooth microphone when, after a bit of static, the cellphone connection drops. Within a few seconds, cellphone-controlled drones, one out delivering a new 55-inch flat screen television from an online retailer, begin to crash into each other and then fall onto moving cars. Chaos ensues. If you curse the periodic dropped call, just wait until you start seeing dropped drones.

It can also be worse, the Federal Aviation Administration [FAA] reported that, on March 22, 2014, a drone nearly collided with a U.S. Airways flight traveling from Charlotte, North Carolina en route to Tallahassee, Florida.

With the FAA estimating that, once enabling rules are established, “roughly 7,500 commercial sUAS [small Unmanned Aircraft Systems] would be viable at the end of five years.”

On February 15, 2015, the FAA released a summary of the major provisions of its proposed UAS rules (known as Part 107). While a few of the proposed rules are more liberal than anticipated, most follow the historical view of the agency in treating UAS more like private planes than the concept that they represent for the future. Before outlining the proposals, a short history of the FAA’s previous attempts to regulate drones.

The Pirker case was the first challenge to the FAA’s attempt to regulate small unmanned aerial vehicles [UAVs] under existing policies (Administrator v. Pirker, FAA Case No. 2012EA210009, NTSB Docket No. CP-217). Raphael Pirker used a small, remote-controlled model power glider to take aerial photos for advertising purposes at the University of Virginia campus. The FAA alleged that the glider was endangering people on the ground and property on the campus. The FAA cited Pirker for violating a ban on commercial UAS usage, and for operating an unmanned aerial vehicle [UAV] “in a careless and reckless manner,” pursuant to 14 C.F.R. §91.13, putting it under the FAA’s authority to enforce flight safety. Further, the FAA argued that it had authority to regulate the UAV because any device intended for flight is an “aircraft,” including this small UAV. Pirker did not have a pilot’s license and was assessed a civil penalty of $10,000 for violation of a 2007 FAA Policy Statement.

Pirker filed a motion to dismiss, choosing to challenge the violation on grounds that there is no existing FAA regulation governing the operation of model aircraft, and that the FAA’s Policy Statements concerning the operation of UAVs are not binding or enforceable. Further, Pirker argued that the power glider was not an “aircraft” as contemplated by the regulations, and that the FAA had no jurisdiction to regulate model aircraft in airspace below 400 feet (i.e., navigable airspace for manned aircraft).

In a decision issued March 7, 2014, the NTSB judge held that the power glider was not an “aircraft”—rather, it was a small UAV that otherwise qualified as a model aircraft (i.e., an aircraft under 55 pounds, being operated below 400 feet)— even if it was engaged in commercial operations. Further, it was held that the FAA had no authority without properly enacted rules (as opposed to “policy statements”) to regulate this type of drone, whether or not it was being used for commercial purposes. The NTSB judge also pointed out that the FAA had historically treated model aircraft separately from other types of “aircraft,” so its position with respect to Pirker was not consistent with that historical distinction.

The FAA appealed the decision for review by the full National Transportation Safety Board [NTSB]. On November 17, 2014, the NTSB reversed the judge in finding that “[a]n aircraft is ‘any’ ‘device’ that is ‘used for flight in the air’,” and therefore subject to the requirements of 14 C.F.R. §91.13(a) to not operate an aircraft “in a careless or reckless manner so as to endanger the life or property of another.” contrary to § 91.13(a).

Commercial drone operators have been concerned that the FAA will use the ruling to shut down all but governmental drone use and have been lobbying Congress to “open up the skies”. The skies will open up sooner rather than later. The FAA Modernization and Reform Act (Public Law 112-95), required that the FAA come up with a plan for “safe integration” of UAS by September 30, 2015. The newly proposed rules do not eliminate commercial drones but would impose limitations that have been made obsolete by the rapidly advancement of drone technology. A short outline of the more restrictive proposals:

  • Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the operator or visual observer and close enough to the operator for the operator to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses. First-person view camera cannot satisfy “see-and-avoid” requirement but can be used as long as requirement is satisfied in other ways.
  • Small unmanned aircraft may not operate over any persons not directly involved in the operation.
  • Daylight-only operations (official sunrise to official sunset, local time).
  • Maximum airspeed of 100 mph (87 knots).
  • Maximum altitude of 500 feet above ground level.
  • Minimum weather visibility of 3 miles from control station.
  • No person may act as an operator or VO for more than one unmanned aircraft operation at one time.
  • No careless or reckless operations.
  • Requires preflight inspection by the operator.
  • Operators would be required to:
    • Pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center.
    • Be vetted by the Transportation Security Administration.
    • Obtain an unmanned aircraft operator certificate with a small UAS rating (like existing pilot airman certificates, never expires).
    • Pass a recurrent aeronautical knowledge test every 24 months.
    • Be at least 17 years old.
    • Make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the proposed rule.
    • Report an accident to the FAA within 10 days of any operation that results in injury or property damage.
    • Conduct a preflight inspection, to include specific aircraft and control station systems checks, to ensure the small UAS is safe for operation. FAA airworthiness certification not required.
    • Maintain the UAS in condition for safe operation and prior to flight must inspect the UAS to ensure that it is in a condition for safe operation.
  • Aircraft Registration required (same requirements that apply to all other aircraft).
  • Aircraft markings required (same requirements that apply to all other aircraft). If aircraft is too small to display markings in standard size, then the aircraft simply needs to display markings in the largest practicable manner.

The new rules are similar to exemptions granted by the FAA under its nearly complete ban on commercial use of UASs. Prior exemptions have been limited to newsgathering organizations (most recently, CNN), British Petroleum (for surveying the Alaskan north slope), six movie productions, one construction company, an agricultural producer, and, just this year, to a real estate agent in Tucson, Arizona. CNN’s recent an exemption was issued in conjunction with the Georgia Tech Research Institute to order to test proposed safety rules and protocols for news use. The real estate agent will be helped by the new rules as the 33 limitations imposed by his exemption granted earlier this year were more restrictive than that currently proposed and included:

  • Operations were required to be conducted by a pilot possessing at least a private pilot certificate and at least a current third-class medical certificate;
  • Prior to operations conducted for the purpose of aerial videography/cinematography and augmenting real estate listing videos (or similar operations), the pilot must have logged a minimum of 25 hours of total time as a UAS rotorcraft pilot including at least 10 hours logged as a UAS pilot with a multi-rotor UAS;
  • Flight operations must be conducted at least 500 feet from all nonparticipating persons, vessels, vehicles, and structures unless: barriers or structures are present that sufficiently protect nonparticipating persons (as opposed to the limits of the new rules about flying over a non-participant).

While some of the other exemption limitations may find their way into the FAA’s rules, the FAA has at least attempted to loosen some of its earlier restrictions.

Notwithstanding the more liberal nature of the proposals, US commercial interests have arguments over the rules based on competition from other countries. Amazon has tested drones in Canada and Google in Australia. Testing facilities are already moving out of this country. Many commercial users, such as real estate photographers, delivery companies, and the like, are concerned that they will be left out in the cold with only large companies receiving exemptions. While I believe that no one can really object to the minimum training imposed on drone operators, technology has clearly outstripped the VLOS and daylight limitations.

So, where will drones take us? To infinity and beyond? Or a legal morass? Time will tell, but we may not have to wait long for an answer.

For any questions about drones, new rules, and the impact on the real estate industry, please contact Michael Greene below.

Michael S. Greene, Esq.

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: msg@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment, Creditors’ Rights & Bankruptcy, Business Litigation, Corporate & Finance, Real Estate, International Law

Miami • Ft. Lauderdale • Boca Raton

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B’nai B’rith Justice Unit – Installation Brunch

Bnai Brith Justice Unit Installation BrunchCommercial Litigation Partner Eric Assouline, on behalf of Assouline & Berlowe, is proud to sponsor the 34th Annual Installation Brunch of the Officers and Directors B’nai Brith Justice Unit #5207, taking place in Ft. Lauderdale, Florida.

Outgoing President, Broward County Court Judge Lisa Porter, has done an amazing job leading the Justice Unit during the 2013-2014 term.  We all thank her for the extraordinary time and effort spent to further the goals of B’nai B’rith and make this the best year in the history of the Unit.

B’nai B’rith, founded in 1843, is one of the world’s oldest and most respected service organizations.  B’nai B’rith focuses on helping people in the community that cannot help themselves.  Whether responding to national disasters, working with America’s elderly, or promoting the development of the youth, B’nai B’rith works to improve people’s lives in our community.  Older than the American Red Cross, B’nai B’rith is a vital part of the community and their leaders deserve much recognition for their efforts.

The Justice Unit is composed of judges and lawyers in Broward County that aim to spread the quality and professionalism expected from its distinguished members of the bar and the bench.

The installation brunch is scheduled for Sunday, March 9, 2014 from 10am – 12pm at the Renaissance Fort Lauderdale – Plantation Hotel, 1230 South Pine Island Road, Plantation, Florida.

To register for the event, click here.

ASSOULINE & BERLOWE – The BUSINESS LAW Firm

Telephone: 954-929-1899

With offices in Miami, Ft. Lauderdale, and Boca Raton

ERIC N. ASSOULINE, ESQ.

ASSOULINE & BERLOWE, P.A.

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami · Ft. Lauderdale · Boca Raton

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Eric N. Assouline
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