Protect Against Infringement by Registering Your Trademark

Trademarks protect certain types of intellectual property. Like other intellectual property rights, trademark protection incentivizes innovation by preserving the unique way in which a product is associated with its producer. This link is often referred to as “branding.”  It allows us to identify products produced by a particular person or company.

What do trademarks protect?

An individual trademark may protect only one small element of a particular product, service, or company brand. “Trademark” is a general term applied to marks associated with a good or service meant for sale. This means they can take many different forms, including phrases, slogans, symbols, logos, and designs. The person or organization who owns the trademark has the exclusive right to use that particular mark, logo, or design to distinguishes their product(s) from those of their competitors.

A quick way to understand trademarks rights is to consider the products you use.

The computer or phone you are using likely has a distinguishing design or logo. This logo makes it easy to know you are using a product from a particular company that you presumably trust for their quality. If you discovered your device was not in fact produced by the company associated with the logo on its cover, you may understandably feel deceived. The company who owns the logo may have greater cause for concern, however, as you likely intended to purchase a product from them and instead purchased a lower quality counterfeit from a competitor. Trademark rights give the logo’s producer the ability to seek legal action against anyone who uses the logo without permission.

Trademark ownership

When someone produces a new design and ties it to their product, the default rule is that the producer has the right to claim ownership over that design. The form and originality of the design determine whether the link is unique enough to be protectable by trademark. This is important because any person or organization who owns a trademark has the exclusive right to use that design element. Nevertheless, the automatic trademark that arises when a producer creates a new design element attached to a service or product is not fully protected unless the owner registers the trademark with the federal government.

Trademark rights have a limited reach unless you register your trademark.

Trademarks are automatically tied to their original producer in the eyes of the law. However, this default ownership does not fully protect against infringement. If a dispute arises the producer would have to prove ownership over that design and prove that the infringing party knew the producer owned the exclusive right to use the protected design. By completing a trademark registration with the U.S. Patent and Trademark Office, the producer puts the United States on notice regarding who created that design. In turn, the registrant is given top priority and nationwide reach of ownership claims. This also prevents potential infringers from pleading ignorance in defense of an infringement claim. Registration greatly enhances the value of a trademark because the owner can more easily enforce its rights.

Trademarks are a useful tool to ensure that design elements are exclusively associated with a particular product, service, or company brand. Producers who want maximum protection against trademark infringement should consult with an attorney regarding the steps necessary to register their trademark. 

Registering Your Copyright is The Best Way to Protect Against Infringement

Copyright laws protect a type of intellectual property referred to as “original works of authorship.”  These include literary, musical, choreographic, architectural, and many more kinds of works. Copyright laws derive from Congress’ Constitutional power to ensure authors can secure exclusive rights to copy and profit from their original creations. By default, the author of an original work owns the copyright to that work. However, this default ownership cannot provide the same protection as a copyright registered with the U.S. Copyright Office. In this post we will discuss why registering your copyright with the federal government is an important step to protect your creations.

Most of the content we consume is protected by Copyright laws.

Consider your daily media consumption: The music you enjoy, the TV you watch, and the books you read are most likely protected by copyright laws (exceptions being works in the public domain.) Therefore, if someone decided to make copies of that protected content and distribute them, they would be infringing on the owner’s copyright. Unfortunately, despite owning the work, there is not much the original creator can do about this if she has not registered her copyright with the federal government. This is because a copyright must be registered before the owner can file a lawsuit for copyright infringement.  

Copyright registration grants the protections most important to creators.

Along with the right to sue for copyright infringement, registration gives owners more protection for their creations. Timely registrants can sue for statutory damages. This means damages are automatic and removes the requirement that the owner present evidence proving how and how much they were harmed by the copyright infringement. They can also sue for the attorneys fees they incur in enforcing the copyright. Additionally, any registrant can record his/her copyright registration with the U.S. Customs and Border Protection Agency to help stop pirated and counterfeit versions of your work from coming into the U.S. Copyright registration offers significant legal advantages and brings peace of mind to owners.

Copyright ownership is not always clear-cut.

The first step in registering a copyright is determining who is the rightful owner. There are some cases in which the original creator of a work may not actually own the copyright. Consider a work of art commissioned by a patron. Who owns the completed work? This is just one of many examples that may cause some conflict. Because copyright laws apply to many different industries working in different mediums abiding by different standards and practices, the potential for disputes over copyright ownership is quite high. Owners who want maximum protection against copyright infringement should consult with an attorney regarding the steps necessary to register their copyright.

San Antonio's Sick Leave Ordinance - New Policies Set to Unfold This Summer

On August 16, 2018, the San Antonio City Council voted 9-2 to approve a new sick leave ordinance.  This ordinance creates new requirements for businesses operating within San Antonio city limits. This post will highlight some of the main requirements under this new law. Employers should seek counsel with a knowledgeable employment law attorney for further guidance on their compliance obligations.  

Private Employers in San Antonio must provide sick leave

Sick leave is paid time off that employers provide to their employees. This time off is earned by putting in hours at work. Traditionally, employers opt into this practice, however the new sick leave ordinance mandates that San Antonio employers must provide sick leave to all full- and part-time employees. Employees accrue sick leave at a rate of 1 hour for every 30 hours worked. The law also specifies details surrounding independent contractors, unpaid interns, and employees with Collective Bargaining Agreements (CBA’s). Other requirements vary slightly depending on the size of the business.

Employees can use sick leave under several circumstances

Sick leave allows employees to miss work to seek medical care for physical or mental ailments.  Employees can use accrued sick time to tend to themselves, a family member, or even a close friend the employee considers family. Employees may also use leave to seek preventative medical care. For example, a standard wellness checkup at the doctor is an acceptable use of sick leave.

Employers are restricted in several additional ways

Employers cannot request a doctor’s note from an employee unless they miss three or more consecutive days of work. Employers may not request information regarding the specific nature of the illness, injury, or health condition. While the ordinance does ask that employees give sufficient notice before taking leave, the ordinance prohibits the employer from denying leave even in cases where the employee fails to give advance notice.

The San Antonio Sick Leave Ordinance is set to go into effect August 1st, 2019. Most employers will be impacted immediately. The ordinance allows additional time for employers with five or fewer employees to update their sick leave policies and procedures. San Antonio employers should speak with an employment law attorney to be sure they are in compliance with this new language.

Happy New Year!

We would like to wish everyone a Happy New Year! To kick off the new year right, we would like to remind our readers that January is a great time for employers to review whether they are complying with all employment law posting requirements. The Department of Labor offers this tool to identify and locate posters that are required under federal and state law. This is a great resource for both new and established employers. Once you answer a few questions about your workplace, you will be directed to the appropriate posters to download, print, and display.

We wish you a successful and compliant 2019!

New Office!

We have a beautiful new office located at 2222 Western Trails Blvd. Suite 102 Austin TX 78745. We are thrilled with our new location and are looking forward to hosting our new and existing clients in our new space!

"Me Too" Prevention - A Checklist for Small Businesses

In light of recent events in the news, now would be a great time for small businesses to run through a quick checklist.

1. Do you have a sexual harassment policy?

2. When was the last time your company reviewed and updated your sexual harassment policy and enforcement procedures?

3. Do you offer sexual harassment training to educate employees on what behavior is and is not tolerated in the workplace?

4. Do you provide an effective way for employees to make complaints when potential violations occur?

5. Do you take appropriate action to enforce your sexual harassment policy by investigating all complaints and addressing violations soon after they occur?

No small business wants to appear in the news after an outpouring of "Me Too" reports from employees.  There are simple steps companies can take to ensure they provide a healthy and respectful work environment for all.  Now get to it.

Austin Lawyer Magazine

       Principal Attorney Jennifer Ward was quoted in the September issue of Austin Lawyer Magazine! Ms. Ward described how unique the 2017 ArtFest was, commenting that "In the end, ArtFest was classic Austin. We had 100-degree weather, a chance to mingle with local artists and musicians, and really great food. The best part was that all of the proceeds supported organizations doing important work right here in out community." 

     Ms. Ward was the chairperson of the recent 2017 ArtFest, which was put on by the AYLA/Austin Bar Association 2017 Leadership Academy. The event raised almost $16,000 for The Arc of the Capitol Area and Travis County Stronger Together.  It happened on July 29, 2017 at Mercury Hall.


Save the date for a fun event on July 19 from 6 to 9 at Mercury Hall!

Ms. Ward is helping to organize an arts event through the Austin Bar Foundation that is benefiting local non-profits The Arc of the Capital Area and Travis County Stronger Together.  The event will include local musicians, local artists displaying and selling their creative works, a selection of local food items, beer and cocktails, and a silent auction.  It should be really fun!  

Tickets are $45 and can be purchased here.

If you are an artist, musician, or donor who is interested in participating in the event, more information can be found here.

One Employee Triggers Many Laws

For small business owners, hiring a first employee is a very important step. The employer must comply with a range of laws as soon as that first employee comes on board. 

Be Aware of Reporting Requirements

An employer's first obligation is to comply with Texas and federal reporting laws. The new hire will need to fill out an I-9 form. Businesses must report new employees to state and federal agencies within twenty (20) days of the start of employment.

Federal Laws Protect Employees

Several important federal laws protect employees where a business has one or more employees. The Federal Labor Standards Act (FLSA) sets out the minimum wage and overtime laws we are all accustomed to in the U.S. The Occupational Safety and Health Act (OSHA) protects the health and safety of workers. Businesses must comply with these laws as soon as they hire their first employee. Other important federal statutes, including Title VII and the Family Medical Leave Act, only restrict businesses with more people on the payroll.

Some Texas Employment Laws Also Apply

Several state-level protections are triggered by the first hiring. The Texas Payday Act governs how and when employees get paid. It spells out state requirements for minimum wage, overtime pay, timely wages, and illegal deductions. Employers must also comply with the Unemployment Compensation Act. Even employees who work for an employer for as little as a single day may be eligible for unemployment benefits through that employer.

There Are Workplace Posting Requirements

Employers must provide workers with information regarding their rights by posting various types of information in a visible location within the workplace. They must provide or post informational materials about Workers' Compensation, the FLSA, OSHA, the Texas Payday Act, and other laws. Many of these posters are available for free through agency websites.

Ongoing Compliance Is Key

For employers with one or more employees, it is important to check and update their informational posters periodically. The Texas Workforce Commission website is a great resource for this purpose. They should also review whether they are in full compliance with all relevant employment laws. An experienced employment law attorney is in the best position to evaluate and advise on compliance issues.  

The Texas Whistleblower Act Protects Government Employees

When a public employee discovers illegal activity in their job, they have an ethical (if not a legal) duty to report it to somebody who can do something about it.  The Texas legislature enacted the Texas Whistleblower Act in 1983 to protect these employees from retaliation for making such a report.  

In order to recover under the Act, a plaintiff must show: (1) she is a public employee; (2) she acted in good faith in making a report; (3) the report involved a violation of law by an agency or employees; (4) the report was made to an appropriate law enofrcement authority; and (5) she suffered retaliation.  Tex. Gov't Code § 554.002.  Section 554.022(b) further clarifies that an “appropriate law enforcement authority” is a government official or entity that "an employee in good faith believes is authorized to regulate under or enforce the law alleged to be violated in the report or to investigate or prosecute a violation of the criminal law."  

Yesterday I was interviewed about a Whistleblower lawsuit with claims arising under the Texas Whistleblower Act, Texas common law, and the First and Fourteenth Amendments.

Common Pitfalls of the Fair Labor Standards Act

As soon as a business or non-profit hires its first employee, it must comply with the Fair Labor Standards Act (FLSA). This federal statute is widely known because it includes the minimum wage and overtime requirements we are all accustomed to. Still, there are many common misconceptions about this law. Businesses and organizations should take the time to ensure that they are complying with FLSA guidelines and keep careful records showing as much.

Exempt vs. Non-exempt

An employee who is classified as "nonexempt" must be paid minimum wage and must receive overtime pay for all hours worked beyond forty (40) hours per week. Individuals who are properly classified as “exempt” are not guaranteed minimum wage or overtime pay. Employers must have a solid understanding of what makes an employee exempt to avoid denying the right to minimum wage and overtime pay. Mistakes can lead to huge financial consequences for their business because FLSA penalties can add up fast.

How to Classify Employees

Despite popular belief, it is not the case that all salaried employees are exempt. In fact, employers must look at several different factors to determine the appropriate classification.

Employers should start by looking at the primary job duties for a particular position.  Exempt employees fall into one of three categories.  An employee in management who supervises two or more people and is responsible for hiring and firing is considered an executive. An employee who is primarily responsible for the support of the business works in an administrative role. These positions involve much more than simple clerical work and include human resource, public relations, and accounting roles. Professionals perform jobs that require advanced education and training, such as lawyers, physicians, teachers, and architects.

Executive, administrative, and professional employees must meet several additional requirements in order to be exempt. They generally must receive a salary rather than hourly pay. Employers must pay exempt employees a minimum of $455 per week. An executive, administrative, or professional who receives less than this amount is considered nonexempt and is entitled to receive overtime pay.

The Consequences of Mis-Classification

Sometimes employers will mistakenly mis-classify employees. By treating a nonexempt employee as an exempt employee, they may not properly record and compensate minimum wage and overtime hours. These employees may file FLSA overtime claims with the U.S. Department of Labor. After the claims are investigated, the employer may be subject to severe penalties and backpay. 

Employers should take great care to avoid this situation. They should develop clear job descriptions that identify the job duties for all positions. They should work with an experienced employment attorney to ensure that they properly classify their employees as exempt or nonexempt. Finally, they should track and record all work hours to ensure that employees receive the full minimum wage and overtime pay they are entitled to receive.