Edward Sharkey's blog

Can I Put Website Terms of Use In a Browse-wrap Agreement?

Posted by Edward Sharkey on Wed, 09/17/2014 - 04:00

Businesses may want to consider reviewing their website terms of use in light of a Ninth Circuit court ruling about browse-wrap agreements. In the case, the defendant retailer tried to compel a complaining consumer to arbitrate his claim according to the applicable website terms of use. The court refused to grant the motion because there was no evidence the plaintiff read or agreed to the terms of use.

Why Does Hershey Care if a State Politician Mimics Its Candy Wrapper in Ads?

Posted by Edward Sharkey on Fri, 09/12/2014 - 04:00

A lawsuit recently filed in federal court in Maryland highlights one of the largest burdens faced by trademark owners: protecting the mark. The Hershey Company filed the suit, alleging that campaign materials used by Senator Stephen S. Hershey, Jr., a candidate for state office, too closely mimic the famous chocolate maker’s candy bar packaging. Senator Hershey’s logo, like that of the chocolate bar, uses the word “Hershey” in white capital letters on a brown rectangular background. Beneath that, the candidate’s materials contain the text “state senate” in lieu of the candy’s “milk chocolate.”

The dispute dates back to 2002 when the Senator used campaign materials with a similar logo in a run for county commissioner. Back then, the Hershey Company asked the Senator to stop using the materials, and he did so. In 2010, he renewed use of the logo during a campaign for state delegate. The Hershey Company again asked the Senator to stop and, this time, he promised to change the font and color in the future. The newest incarnation of the Senator’s logo, the one at issue in the lawsuit, has a two-tone brown background in the pattern of the state flag underneath the “Hershey” imprint.

ADA: Is Lack of an Ability the Same as a Disability

Posted by Edward Sharkey on Fri, 06/27/2014 - 04:00

We’ve often posted about employers’ struggles with issues related to the Americans with Disabilities Act (“ADA”). One challenge businesses sometimes face is figuring out whether a particular employee should be deemed disabled.

Court Rules that General Liability Policy Does Not Cover Data Breach

Posted by Edward Sharkey on Mon, 06/16/2014 - 04:00

Insurance companies and businesses continue to battle over the scope of coverage for data breaches afforded by general liability policies. Insurance companies recently got a big win in litigation in New York.

The litigation arose out of a data breach suffered by Sony. A third party hacked into Sony’s PlayStation network and stole more than 50 million users’ personally identifying information, including credit card numbers. Potentially affected users filed more than 50 class action lawsuits against Sony.

Novel Social Media Campaign, Meet Some Old-School Federal Regulators.

Posted by Edward Sharkey on Wed, 06/04/2014 - 04:00

Many businesses use social media to advertise their product or service in creative ways. It can be cost-effective, and it can circumvent consumers’ learned resistance to traditional advertising. As the most inventive among us cross these communication frontiers, however, it is important to remember that some old fashioned government regulation still applies – even on the internet.

The Federal Trade Commission Act (“FTCA”) prohibits unfair and deceptive practices. It applies to traditional forms of advertising (like radio and print ads) as well as online marketing campaigns. A recent letter from the FTC to the shoe company, Cole Haan, concerning the company’s “Wandering Sole” Pinterest campaign made a lot of appreciative marketers say “neat”, and then “wait a minute; what?”

EEOC Gives Guidance on Religious Dress in the Workplace

Posted by Edward Sharkey on Wed, 04/30/2014 - 04:00

Uniforms and dress codes are an integral part of many companies. Business owners and operators appreciate the consistency, the branding, and the image that uniforms can help create. Can you imagine a UPS deliveryman showing up at your door wearing jeans instead of brown shorts?

Problems may arise, however, when an employee’s religion dictates that they dress or groom themselves in a manner inconsistent with their employer’s uniform or dress code. Small business owners grapple with this dilemma on a constant basis: “When should I allow my employee an exception from the rule, and when may I lawfully enforce my rule over my employee’s religious objection?”

FBI Warns of E-Mail Fraud Specifically Targeting Businesses

Posted by Edward Sharkey on Wed, 03/19/2014 - 04:00

Last month, the Seattle office of the FBI issued a warning about a new e-mail fraud. Three businesses were victimized by the scam. The FBI has taken to calling the new type of fraud the “man-in-the-E-mail,” which derives its name from the criminals’ modus operandi: they intercept e-mails between established business partners and insert themselves into the e-mail chain. How do they do it?

Federal and State Data Breach Laws Every Business Should Know

Posted by Edward Sharkey on Wed, 03/12/2014 - 04:00

Over the past few months, we have devoted a lot of attention to the legal issues businesses face when they experience a data breach. There are two reasons why this topic is becoming an important aspect of business litigation:

Is My Contract Damages Clause Enforceable?

Posted by Edward Sharkey on Mon, 02/10/2014 - 05:00

Not necessarily.

Last year, we helped a colleague who is a business law professor compile a list of terms, commonly found in contracts, which simply do not work. Courts do not enforce them in the plain way that they are written. The purpose was to educate future business lawyers about a practical reality of contract law: a lawyer can get an opposing party to agree to a term in a contract, but that does not necessarily mean it will be enforced. This is a challenge for lawyers and clients alike, as it can lead to a failure of expectations - something that is never good for business.

A recent opinion from the Maryland Court of Special Appeals reminds us of this reality. In the case, a business hired a contractor. Their agreement included a covenant not to solicit. If the contractor hired away any of the business's employees, the contractor would be liable to pay the business 150% of the employee's annual salary. The contractor did just that, and litigation ensued.

Retailers Ask for Uniform Regulation Where Data Breaches Are Concerned

Posted by Edward Sharkey on Mon, 01/27/2014 - 05:00

In the wake of massive data breaches at Target retail stores and Nieman Marcus, media are reporting that retailers are begging for increased federal regulation of data breach events. Specifically, they report that corporate America is behind the introduction of new bills in the Senate and House which would create a federal standard requiring immediate notification to consumers whose data has been compromised. Articles are playing the theme that regulation is good for business because businesses are asking for it. While the theme is interesting, it is utterly false.

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