9.28.2016

Questions for The Trump Foundation Regarding Charity Finances


If you run a non-profit and want a clear example of how NOT to manage it, there is no better example than the Trump Foundation. Improper fund use, self-dealing allegations and failure to pay federal income taxes are just a few of the problems that the Trump Foundation has at best, ignorantly, and at worst, intentionally, created for Trump.

From Talking Points Memo:
It’s not just where the money went from the Donald Trump Foundation that’s drawing scrutiny to GOP nominee. It’s also how the money came in.
new Washington Post report this week presented cases where Trump directed third parties to pay monies owed to him or his businesses directly to the Donald J. Trump Foundation--monies that arguably should have been taxed as income to Trump. 
The Trump campaign has said that the payments were all aboveboard and proper, and slammed the Post's reporter for trafficking in speculation about possible but not proven legal problems. All of this comes against the backdrop of Trump refusing to release his tax returns, a stance unprecedented among modern major party presidential nominees. Without those tax returns, the exact handling of the payments and any associated taxes remains murky. 
But tax experts interviewed by TPM said the new revelations by the Post include a number of red flags. At best, the practice could be described as sloppy and driven by an extreme ignorance of the law, the experts said. At worst, it fits into a pattern of using the charity as a personal piggy bank. On their own, such allegations could be dealt with a minor slap on the wrist, but coupled with the Post’s previously surfaced examples of Trump using foundation money for his own benefit they fuel major concerns about how Trump’s charity has operated.
For more on the story, click here.

Jiminian Law PLLC is devoted to helping clients form and manage their nonprofits and address issues that arise with them.  With nonprofits matters, it is always best to be pre-emptive by crafting and implementing a great nonprofit business plan.  That is where I can come in, helping your nonprofit get on the right path from the get-go. Providing knowledgeable and effective consultation and representation are the keys to my success. Danny Jiminian, Esq. is available for a free consultation if you call him at 917.388.3574 or 929.322.3546 or email him at danny@djimlaw.com.

9.20.2016

Owning a Cup of Trademark Transparency

9/19/2016 by Steve Baird | Winthrop & Weinstine, P.A.


Seeing this Caribou Coffee skyway billboard was a good reminder to me of how much we hear about the importance of transparency in our relationships, including those with brands we love:

It appears that the prevalence of society’s use of the word “transparency” may be at an all time high, where the use of “transparent” has declined somewhat since its high in the mid-1800s.
We’ll leave to the lexicographers and linguists an explanation as to why “the condition of being transparent” is apparently more important nowadays than the root word “transparent.”
Having said that, what’s not to love about transparency, at least when it is synonymous with trust,authenticity, and integrity, as opposed to becoming lipstick service to the idea, an overused buzzword, or meaningless cliche.
Yet, given the popularity of the term, especially in certain business niches, when it comes to owning trademarks and taglines containing the term “transparency,” at least from a trademark perspective, it might be a better idea to consult your handy thesaurus, and look for a far less-used and more distinctive term with similar meaning: LimpidPellucid, and Perspicuous.
To illustrate the point, what might be the scope of rights associated with this federally-registered service mark for TRANSPARENCY in connection with medical services, especially when it coexists with a federal service mark registration for TRANSPARENT HEALTH, not to mention this multitude of references on Google?
And, when it comes to non-traditional trademarks, such as product packaging and trade dress, let’s not forget what implementing the idea of transparency might bring, when the brand owner is too obvious about it: Functionality and no trademark rights (i.e., when see-through packaging elements are utilized, especially in the food industry).
Could there be a need for balance in not providing “too much information” when consumers don’t really want to watch the sausage being made, yet know it is safe and healthy to eat?
In the end, let us not forget that actions always speak louder than words.
Jiminian Law PLLC is devoted to helping clients in all areas of business, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success.  Danny Jiminian, Esq. is available for a free consultation if you call him at 917.388.3574 or 929.322.3546 or email him at danny@djimlaw.com.

Raiding the Register: Trademarks and Franchise Relocation

It seems like each year a new sports franchise is threatening to move to a new city. Here in Minnesota, we recently ensured at least 15 more years of the Vikings with the newly opened U.S. Bank Stadium. Before the announcement of the stadium deal, though, each time a veiled threat of the Vikings leaving Minnesota brought back the quote below from the 1988 comedy BASEketball:
Soon it was commonplace for entire teams to change cities in search of greater profits. The Minneapolis Lakers moved to Los Angeles where there are no lakes. The Oilers moved to Tennessee where there is no oil. The Jazz moved to Salt Lake City where they don’t allow music. The Raiders moved from Oakland to LA back to Oakland, no-one seemed to notice.
However some recent reports demonstrate that at least some people care about the Raiders. The team’s recent trademark filings suggest that a move to Las Vegas is a real possibility. On August 20, the team applied to register the LAS VEGAS RAIDERS mark in connection with various clothing items, providing entertainment services, including football games, and other memorabilia.
There is no guarantee that the Raiders will move from Oakland, but of course, there is a chance. And where there is a chance, there’s always someone hoping to strike it rich with a gamble. The Oakland Raiders aren’t the only entities with pending applications for the LAS VEGAS RAIDERS mark. In fact, there are six other pending applications owned by other individuals for the identical mark. Each of the applications below is owned by a different individual person:
  • LAS VEGAS RAIDERS for t-shirts, filed on Jan. 29, 2016;
  • LAS VEGAS RAIDERS for t-shirts, tank tops, sweatshirts and jerseys, filed on Jan. 29, 2016;
  • LAS VEGAS RAIDERS for various entertainment services, including presenting football games, filed on Jan. 29, 2016;
  • LAS VEGAS RAIDERS for athletic shirts, pants, jackets, footwear, hats, caps and uniforms, filed onJan. 29, 2016;
  • LAS VEGAS RAIDERS for bottoms, footwear, jerseys, hats, pants, socks, and tops, filed on Jan. 29, 2016;
  • LAS VEGAS RAIDERS for shirts, jerseys, polo shirts, sweat shirts, and t-shirts, filed on Jan. 30, 2016; and
  • SIN CITY RAIDERS for various clothing items, filed on May 14, 2016.
My memories from Jan. 29, 2016 are a little foggy, but I have an inkling there may have been a news report regarding a possible move to Las Vegas published on that day.
Each of these applications has been refused registration on the ground that the mark falsely suggests a connection with Raiders from the NFL as well as a likelihood of confusion with the prior registered marks RAIDERS, OAKLAND RAIDERS, and LOS ANGELES RAIDERS, and RAIDERS NATION. None of these applicants are likely to overcome the refusals. All of the applicants will be sad to learn that the $225 – $235 governmental filing fee is non-refundable.
There is also one company (rather than an individual person), Nella Chunky LLC, that has also filed trademark applications just recently on Sept. 2, 2016: one for the LAS VEGAS RAIDERS mark in connection with clothing items and VIVA LAS RAIDERS, also in connection with clothing. Interestingly, this entity claims a date of first use back to March 1, 2015, but even assuming that this is truthful, it won’t help the applicant overcome a refusal based upon the prior registrations owned by the team. While Nella Chunky was more than seven months late to the “get rich quick” party, I at least have to give them credit for the more creative VIVA LAS RAIDERS mark.
Note that these are just the Las Vegas marks. Similar applications have been filed for other geographic locations, including SAN ANTONIO RAIDERSSAN DIEGO RAIDERSCALIFORNIA RAIDERS, and SOUTHERN CALIFORNIA RAIDERS.
On a surface level, it doesn’t seem like there is much to learn from these applications, other than the fact that it is difficult to hijack the trademark of a professional sports team. But in reality, these applications provide a valuable lesson if you or your client is on the verge of launching a new product, service, or company: seek trademark protection prior to any public announcements.
The caveat to early filing is that you’ll want to ensure that you will be able to begin using the mark in U.S. interstate commerce within about 3 and a half years. The Trademark Office allows up to 3 years to begin using the mark after the Trademark Office publishes the application and issues the Notice of Allowance. The first six months are free, but every six months thereafter the applicant is required to file a Request for Extension of Time and pay a $150 governmental filing fee.
Although a public announcement for your company may not create as many copycats as an NFL franchise, any public announcement could result in third-parties adopting similar marks for related goods or services. Alternatively, the longer you delay in filing, there is a greater risk that a third-party innocently adopts a similar mark for the same or related goods or services. You or your client will likely be forced to spend the time and effort to oppose the application or petition to cancel the registration. Even then, there is a chance that you may not be successful because it may be difficult to establish a likelihood of confusion depending upon the particular facts. This would create a risk that this third-party could prevent you from registering and/or using the mark. Keeping this lesson in mind could help you or your client avoid expensive headaches later down the road.
Jiminian Law PLLC is devoted to helping clients in all areas of business, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success.  Danny Jiminian, Esq. is available for a free consultation if you call him at 917.388.3574 or 929.322.3546 or email him at danny@djimlaw.com.

Case Analysis: Newt v. Twentieth Century Fox Film Corp. - USDC, C.D. California, July 27, 2016

8/5/2016 by Meg Charendoff, Tal Dickstein, David Grossman, Wook Hwang, Jonathan Neil Strauss, Jonathan Zavin | Loeb & Loeb LLP
District court dismisses copyright infringement claim against creators of Fox’s television show “Empire,” finding no substantial similarity between Fox’s show about struggle for control of music company and plaintiff’s autobiographical story about his exploits as a drug lord and prostitution ring leader.
In a dispute involving the popular Fox television show “Empire,” Ron Newt, a self-described “gangsta pimp” and drug lord who briefly managed his children’s careers in the music industry, sued Twentieth Century Fox Film Corp.; the show’s creators, Lee Daniels and Danny Strong; its star, Terrence Howard; and its writer, Malcolm Spellman. Newt asserted claims of copyright infringement and breach of implied-in-fact contract, arguing that “Empire” infringed the copyrights in his true-to-life book, screenplay and DVD, each titled “Bigger Than Big.” After reviewing the works and finding no substantial similarity, the district court granted Fox’s motion for judgment on the pleadings and the individual defendants’ motion to dismiss. It also dismissed Newt’s state-law contract claim, without prejudice, to refiling in state court.

To establish copyright infringement, Newt was required to show: (1) his ownership of the copyrights in the “Bigger Than Big” works; (2) that Fox and the individual defendants had access to his works; and (3) that there was “substantial similarity” between his works and “Empire.” Fox did not contest Newt’s ownership of “Bigger Than Big” or that it had access to that work, given Newt’s allegation that he met with Howard in 2010 to discuss a potential project based on his life story. Fox’s and individual defendants’ motions focused on whether substantial similarity existed between the works.

Newt’s works involve the story of his life as a pimp and drug lord, including his various imprisonments. Newt later managed his preteen and teenaged sons in a singing and dancing group called the Newtrons, at one point obtaining a record deal for the group and befriending the Jackson family. The climax of the story occurs when Newt’s oldest son is killed during a gang initiation robbery. The district court found that Newt’s works focus primarily on the violence, sex, drugs and crime surrounding Newt’s life — a life he eventually gives up to manage the Newtrons.

“Empire,” on the other hand, focuses on the power struggle among members of the Lyon family, led by patriarch Lucious Lyon, a famous rapper and music mogul who used music to escape the streets and a life of poverty. Although “Empire” contains brief flashbacks to Lucious’ troubled past, the district court concluded that the plot focuses more on the conflict within the Lyon family — including Lucious’ ex-wife, Cookie, and their three successful adult sons — over control of his music empire.

Following an in-depth analysis of the plot, themes, dialogue, mood, setting, pace, characters and sequence of events of the works at issue, the district court identified significant differences between the works. It also found that many of the elements alleged by Newt to have been copied in “Empire” were generic and non-protectable scenes-a-faire, such as the theme of a bad person turning his life around, the setting of a story in an urban nightclub, and members of the music industry wearing hats and jewelry. Furthermore, the district court found that the mood of Newt’s works is dark, violent and sexually graphic, while the mood of “Empire” is less explicit and contains upbeat scenes.

Newt argued that the court was required to apply the inverse-ratio rule, which sets a lower standard of proof of substantial similarity when there is a high degree of access. But the district court decided that Newt would be able to demonstrate substantial similarity even under that relaxed view. The district court concluded that the works are not substantially similar, and dismissed Newt’s copyright infringement claim. The court declined to exercise supplemental jurisdiction over Newt’s state-law claim for breach of an implied-in-fact contract, noting that the similarity analysis under that claim differs from the analysis under copyright infringement, and dismissed Newt’s state-law claim, without prejudice, to refiling in state court.
Jiminian Law PLLC is devoted to helping clients in all areas of business, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success.  Danny Jiminian, Esq. is available for a free consultation if you call him at 917.388.3574 or 929.322.3546 or email him at danny@djimlaw.com.

Copyright and the Creative Commons License

6/01/2016 by Richard Stobbe | Field Law


There are dozens of online photo-sharing platforms. When using such photo-sharing venues, photographers should take care not to make the same mistake as Art Drauglis, who posted a photo to his online account through the photo-sharing site Flickr, and then discovered that it had been published on the cover of someone else’s book. Mr. Drauglis made his photo available through a Creative Commons CC BY-SA 2.0 license, which permitted reproduction of his photo, even for commercial purposes.
You might be surprised to find out how much online content is licensed through the “Creative Commons” licensing regime. According to recent estimates, adoption of Creative Commons (CC) has expanded from 140 million licensed works in 2006, to over 1 billion today, including hundreds of millions of images and videos.
In the decision in Drauglis v. Kappa Map Group LLC (U.S. District Court D.C., cv-14-1043, Aug. 18, 2015), the federal court acknowledged that, under the terms of the CC BY-SA 2.0 license, the photo was licensed for commercial use, so long as proper attribution was given according to the technical requirements in the license. The court found that Kappa Map Group complied with the attribution requirements by listing the essential information on the back cover. The publisher’s use of the photo did not exceed the scope of the CC license; the copyright claim was dismissed.
There are several flavours of CC license:
  • The Attribution License (known as CC BY)
  • The Attribution-ShareAlike License (CC BY-SA)
  • The Attribution-NoDerivs License (CC BY-ND)
  • The Attribution-NonCommercial License (CC BY-NC)
  • The Attribution-NonCommercial-ShareAlike License (CC BY-NC-SA)
  • The Attribution-NonCommercial-NoDerivs License (CC BY-NC-ND)
  • Lastly, a so-called Public Domain (CC0) designation permits the owner of a work to make it available with “No Rights Reserved”, essentially waiving all copyright claims.
Looks confusing? Even within these categories, there are variations and iterations. For example, there is a version 1.0, all the way up to version 4.0 of each license. The licenses are also translated into multiple languages.
Remember: “available on the internet” is not the same as “free for the taking”. Get advice on the use of content which is made available under any Creative Commons license.


Jiminian Law PLLC is devoted to helping clients in all areas of business, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success.  Danny Jiminian, Esq. is available for a free consultation if you call him at 917.388.3574 or 929.322.3546 or email him at danny@djimlaw.com.

9.16.2016

Week in Review

Your potpouri mix of business and legal news happening in the sports, music, film, TV, tech, startup, and business world. For everything from contracts to copyright infringment, read on...

Sapphire Raises $1 Billion for Investment in Start-Ups
Sapphire Ventures has closed on a $1 billion fund to invest in privately held start-ups, easing fears about a downturn in the venture capital industry.

Raleigh, N.C. • The NCAA's decision to pull seven championships out of North Carolina ratchets up the pressure on this college sports-crazy state.

Fort Wayne, Ind.-based Sweetwater in March sued Hello Music LLC in federal court for trademark infringement and says it has settled the case.

SAN DIEGO — A former NFL player who launched an athletic apparel company based off the nickname earned during his career, "Lights Out," has ...

The 11-year-old accounting fraud case against the former American ... A senior New York State trial counsel, David N. Ellenhorn, said that while ...

In a civil copyright infringement claim, many users of copyrighted material are surprised to learn that once the copyright owner has demonstrated that it ...

The “Stairway to Heaven” infringement decision came one year after a jury ruled Robin Thicke's “Blurred Lines” infringed Marvin Gaye's “Got to Give It ...

Remember when deadmau5 used to engage in David and Goliath-esque legal battles with monstrous enterprises like Disney? The latest entity to ...

Two photographers filed a complaint Tuesday against the band Mötley Crüe, alleging that the band and its merchandise vendors used the ...

I might have a bout agreement in the mail, but the money is bullshit," Rockhold said on snapchat (via Bloody Elbow). "When the money is right, I'll be ...

Slightly similar to the grants are contests that encourage startups by rewarding them financially. For example, New York StartUP! 2016 Business Plan ...

European court says linking to illegal content is copyright infringement. The facts of the present case were egregious but the law created by the court is ...

This Week In Sports Law: Lochte Swimming Suspension, NFL Concussion Protocol, US Open ...
Now, a Texas lawmaker intends to submit legislation to change the law and make it clear that entry fee fantasy sports are legal in the state. This seems ...






She outlined the Commission's efforts to address the risks posed by cyber attacks and reaffirmed that Commission staff would continue to focus on cybersecurity and controls in 2016.


Morgan Lewis
The enforcement action highlights the importance of complying with FCC rules with respect to a company's wireless facilities and devices.


The Law Offices of Daniel J. Hurson, LLC
With no fanfare whatsoever, the U.S. Congress has passed legislation, signed into law by President Obama on May 11, 2016, that could encourage more employees to become SEC, CFTC or false claims act whistleblowers.


McGinnis Lochridge
If you're in the high-tech industry, you already know that Austin is one of the hottest marketplaces for technology companies, big and small, from industry leaders to startups.


Paul Hastings LLP
For this reason, the inability of marijuana businesses to open bank accounts has become a growing point of contention between state and federal regulators.
Jiminian Law PLLC is devoted to helping clients in all areas of business, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success.  Danny Jiminian, Esq. is available for a free consultation if you call him at 917.388.3574 or 929.322.3546 or email him at danny@djimlaw.com.


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