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BHL Bogen
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Monday, December 18, 2017

"Google" is not Generic

The case involved whether a trademark owner should lose rights in instances when the trademark is frequently used as a verb such as in the phrase "Google it."
The 9th Circuit Court of Appeals found that "googled" may have become synonymous for Internet searching, but that does not mean that the company cannot protect its name.
Under federal law, anyone can wipe out a trademark as well as the legal protection it officer, if it can be shown that most of the public thinks of the mark as a common work for a good or service. This has happened to other brands in the past, including Kleenex. This has come to be known as "generocide."
The court cited an earlier decision involving a restaurant that replaced customers' order for "a coke" with a non Coca-Cola beverage. Coke won the case because the restaurant failed to show that people thought of cola and coke interchangeably.
While Google is dominant for search engines, it is not dominant that its trademark is in doubt. Even with the verbing of its trademark, consumers still clearly understand that there are other search engines such as Bing and Yahoo! and that Google merely denotes one of them.

Friday, December 15, 2017

Trump Sparks Controversy with Talks of Ending Diversity Visa Program

On November 1, 2017 President Donald Trump called upon Congress to end the United States' diversity green card lotteryin response to a terror attack in New York City which left 8 people dead and 12 others seriously injured. The perpetrator, Sayfullo Saipov, 29, was identified as an immigrant from Uzbekistan who entered the United States in 2010 through the Diversity Visa Lottery Program. The Diversity Visa Lottery program is aimed at boosting immigration from countries which traditionally send fewer immigrants to the US. The program was created as a part of a bipartisan immigration effort in Congress in 1990 and signed into law by President George H.W. Bush. The program grants 50,000 green cards per yearto countries with low immigration rates to the United States, mainly from Africa and Eastern Europe.
President Trump stated, "This program grants visas not on a basis of merit, but simply because applicants are randomly selected in an annual lottery and the people put in that lottery are not that country's finest."
Trump argued that instead of the lottery, the United States should institute a "merit-based system" in which only those with valuable trade skills would be permitted to immigrate to the US. In August, he endorsed a bill introduced by two Republican senators which would streamline the merit-based system and cut legal immigration in half by 2027. The Reforming American Immigration for Strong Employment (RAISE) Act has been in the Senate Judiciary Committee since last February and similar legislation was introduced to the House Judiciary Committee in September.
However, the President has received backlash from experts in the immigration community. In an interview with Associated Press, Fatina Abdrabboh, Director of the American Muslim Advocacy League, stated, "The ending of this program certainly, I think, would be a symbolic defeat and loss in terms of our standing, really, with the whole world."
Washington immigration attorney Kenneth Rinzler concurs with Trump in that the Diversity Visa Program has some deficiencies but argues that the problem is not the vetting of these individuals.
"It's not legitimate to use the recent terrorist attack to knock this program because they (applicants) have to go through the same vetting as everybody else," he says. Rinzler, like other professionals, believes that there are concerns about all green card vetting, therefore, it makes no sense to single out diversity visas.

Monday, December 11, 2017

Don't forgot - you need your real ID for traveling in the USA!

You may have noticed new TSA signs at the airport recently. It reads "starting January 22, 2018, you will need a driver's license or ID form a state compliant with the REAL ID Act, astate that has extension for compliance, or an alternate ID to fly."


What does that even mean?

Drafted in 2005 in the wake of the September 11th attacks, President George W. Bush signed the REAL ID Act. It is intended to ensure driver's licenses were more uniform from state to state and more difficult to forge. It gave the states more than a decade to "establish minimum security standards for state issued driver's licenses and identification cards". However, this time has run out now for boarding federally regulated commercial aircraft. Starting January 22nd 2018, only IDs from a state in compliance with the REAL ID Act or an extension will be accepted when boarding an airplane in the U.S. for domestic flights.


So why should you care?

Currently, 24 states are still not in compliance with the REAL ID Act, according to information from the U.S. Department of Homeland Security, which oversees the TSA (for a full map, see This means that as of January 22, 2018, passengers from those states may not board an aircraft with their driver's license being the only form of identification provided. Passengers will need to have some kind of alternative identification, the most common being passports and military IDs (for a full list of acceptable forms of ID, see For now, all of the noncompliant states have an extension until October 10, 2017. If the extension does not get prolonged, January 22, 2018, will be the deadline for those states. Regardless, even if the extension gets renewed, starting October 1, 2020, REAL ID compliant licenses are the only form of valid identification for domestic air travel.


Why are certain IDs not compliant with the act?

Using South Carolina as an example, the state actively fought against the REAL ID Act. As thengovernor Mark Sanford stated: "The act clearly violates the Founders' intent in offering the 10th Amendment, which states that all powers not given to the federal government are given to the people or the states". He also cited the costs of $17 billion to implement the law, which he considered an unfunded federal mandate. Therefore, in 2007, South Carolina lawmakers passed a bill that forbid the state from complying with the act. On the other hand, states like Michigan, Minnesota, New York, and Washington offer enhanced driver's licenses, which are compliant with the REAL ID Act. Still other states are in the process of switching to REAL ID compliant licenses.


What does this mean for you?

If you are a resident of one of the compliant states, nothing changes for you. The only form of identification you need for a domestic flight is your driver's license. For residents of a noncompliant state, it is advisable to have a valid passport or other form of acceptable ID ready in case there is no further extension granted. Plan accordingly, since it takes 46 weeks to get a new passport.

When you plan to travel with children, nothing changes for them. TSA does not require children under 18 years old to provide identification when traveling with a companion within the United States.


Wage-Fixing, No-Poaching Agreements to be Prosecuted Criminally under new Antitrust Guidance

On October 20, 2016, the Department of Justice's Antitrust Division (Antitrust Division) and the Federal Trade Commission (FTC) jointly released important Guidance aimed at informing human resource professionals (and others involved in hiring and compensation decisions) on the topic of how the antitrust laws apply to the field of employment.
The DOJ and FTC announced that agreements between companies not to hire each other's employees (no-poaching agreements) and agreements not to compete on salaries or terms of employment (wage-fixing agreements) would be "criminally investigated and prosecuted as hardcore cartel conduct." 
To date, both types of agreements, whether entered into directly or through a third-party intermediary, have consistently been considered per se illegal, but have been treated as civil violations of the antitrust laws. Moving forward, the stakes are much higher, with both companies and individual employees facing potential felony convictions for the same conduct.
However, not all interactions or agreements with a competing company or their employees regarding hiring and compensation practices violate the antitrust laws. The new Guidancerecognized exceptions to the general rule against no-poachingand wage-fixing agreements and explained that competitors could exchange information regarding hiring and compensation practices through a neutral third party.
With companies and their employees expecting an increasing antitrust scrutiny regarding their hiring and compensation practices, companies across industries should review their hiring policies pre-emptively to avoid compliance and enforcement consequences.
For more information regarding this matter, please contact Nicole Murphey at