Miami, FL Law Blog for Entertainment Law, Business Law, and Public Interest

Thursday, July 28, 2011

CVS lawsuit against Hillsboro county will soon go to trial

By Pankaj Ladhar of Manos • Alwine P.L.

In a Florida lawsuit, the major drug store CVS is asking for $2.5 Million in returned property taxes. It has taken nearly four years for the case to reach the courts, but CVS wants all property appraisals reviewed again between the years of 2005 and 2010. The company claims that the property appraiser over-valued each of the 35 stores in the county by 10 to 15 percent each.

The defendants in the case include the Property Appraiser, the State Department of Revenue, and the Hillsboro County Value Adjustment Board. Attorneys representing these defendants are expected to argue that the reason these 35 stores should pay more in property taxes is because of a stipulation in the sales contracts of all 35 stores that CVS put in. This stipulation says that if one of the stores closes, it cannot be replaced by another drug store. Defendants argue that this devalues the property, saying that these types of structures and lots are developed specifically for that kind of business.
In retaliation to these claims, attorneys representing CVS argue that their stipulation will not create a situation where the county will miss a business opportunity. According to one lawyer representing CVS, "You could sell it to Walgreens and Walgreens would pay you more for it." The lawyer continued, saying "That's not true because Walgreens is already there. Wherever there's a CVS, there's a Walgreens nearby."

Both sides of the case say that similar issues to this have come up before, but that they were not at this level, and not this sophisticated. There will be a preliminary meeting on Aug. 3 to start deciding on a trial date.

Source: The Tampa Bay Tribune "CVS challenges way Hillsborough appraised properties" Mike Salinero, July 23, 2011

Friday, July 22, 2011

You can't fake a slogan, when it belongs to someone else

By Pankaj Ladhar of Manos • Alwine P.L.

The Naples, Florida seafood restaurant, Pinchers Crab Shack, says that a national fast food restaurant chain has improperly used its slogan "You can't fake fresh" and by doing so has committed trademark infringement. The national fast food chain, Wendy's, is also accused of violating Florida's Deceptive and Unfair Trade Practices Act.

Pincher's Crab Shack says that it trademarked the phrase "You can't fake fresh" in 2004. Evidence filed in the lawsuit includes pictures of Wendy's employees with signs bearing the trademarked phrase.

Anyone who has founded their own business is familiar with all of the long days around a conference room table or long evenings around a kitchen table trying to think of slogans and tagline that will represent their brand and capture the imagination of customers. These sessions can be an even bigger part of the process for smaller local and regional business who do not have the resources to hire advertising agencies or rely upon their own internal dedicated marketing department.
The Florida restaurant claims that Wendy's use of the slogan causes confusion among potential customers. The company that owns Pinchers crab shack has seven restaurants in south Florida. It alleges that the slogan is worth more than $2 million and is asking the court to stop Wendy's from using the slogan at all of their more than 6500 restaurants in the United States and abroad.

A spokesman for Wendy's declined to comment on the case to news sources beyond explaining that Wendy's slogan is "You know when it's real."

Source: UPI "Wendy's sued over 'fake' slogan" July 19, 2011

Thursday, July 21, 2011

Hotfile cleared of direct copyright infringement

By Pankaj Ladhar of Manos • Alwine P.L.

A federal judge may have cleared Hotfile of direct copyright infringement, but the popular file sharing website is not out of the legal woods, yet.

The Miami federal judge deemed complaints made by Hollywood studios that Hotfile is responsible for grand scale copyright infringement unfounded, but allowed a case to go through that alleges the website profits off of similar illegal activity by its members. The prosecution introduced the suit in February, and it follows a long line of similar cases where studios have attempted to curb the distribution of pirated copies of movies and other creative material.

Hotfile argued that its website operates as any other web-hosting service, and should not be held accountable for what users choose to share with each other online. The site does not offer search navigation to view its files, therefore, it is hard to prove that Hotfile distributes copyrighted material.

The studios argue back that the website relies on third-party sites to host and promotes infringed content.
Hotfile is considered a cyber locker, where users can upload files into a personalized queue and share the contents with countless others. Users gain financial rewards if the content proves to be popular among fellow users.

Hotfile was up against both direct and secondary liability charges, the first of which was thrown out by the federal judge citing users were ultimately responsible for all infringing acts. This decision came even though Hollywood studio representatives argued that users were using the site directly for the infringing actions.

The case surrounding the secondary liability charges will continue and prosecutors must prove that Hotfile induces users to infringe on copyrights.

Prosecutors are confident they will see a favorable outcome in the case, as Hotfile allows all of its users to download potentially infringing material proven, which has been proven illegal by precedent.

Source: ARS Technica "Judge rules "locker" site is not direct copyright infringer" Timothy Lee, July 13, 211

Friday, July 15, 2011

Business interests raise questions about new wage laws

By Pankaj Ladhar of Manos • Alwine P.L.

Florida business interests have filed a lawsuit in order to prevent a Palm Beach County ordinance that would affect the way workers could claim unpaid wages from employers. Advocates for such workers, as well as local religious clergy, are protesting the action, explain that the workers are merely trying to obtain what is owed them.

Wage theft usually occurs in the form of employers who force their employees to work off the clock or refuse to pay them overtime. In some cases, employers fail to pay workers at all. Successful lawsuits against such employers are common, but stricter laws against wage theft are often met with opposition, especially in Florida.

Despite such resistance, Miami-Dade County passed a wage theft law in 2010, which has been called one of the most progressive measures of its kind in the United States. The law allows workers who are owed at least $60 in unpaid wagers to make a case with the Miami-Dade County small business development office. The program has awarded over $130,000 in unpaid wages.

The Florida Retail Federation lobbied against the Miami-Dade County wage theft law ordinance as well, claiming effective systems designed to recover lost wages already exist. The group is concerned that such ordinance swill force employers who violate wage theft laws to pay workers through both the county and federal department of labor.

Supporters of the Palm Beach County law say that such a result is not likely to occur, explaining that employers who pay their workers properly will not face any negative consequences. The employee has the burden of proof to prove that they were not paid properly for the work they performed.

The retail federation has filed a lawsuit in state court in the hopes of preventing the law from passing. They argue that the ordinance is in violation of the constitution of the state of Florida.

Source: Huffington Post "Wage Theft: Business Interests Try To Scuttle New Worker Laws" July 6, 2011

Tuesday, July 12, 2011

Sony, Netflix, and Starz dispute arises from their own success

By Pankaj Ladhar of Manos • Alwine P.L.

Recently a business dispute between Sony and Starz has left Netflix subscribers unable to stream the Sony content over the internet via Netflix. As you are likely aware, Netflix now includes in its service live streaming of movies over the internet in addition to sending DVDs through the mail. The rapid growth in subscribers' use of the streaming option surpassed the expectations of the studios.

Sony is engaged in an agreement with Starz which gives Starz the exclusive right to distribute first-run Sony movies on Pay television. As a part of that agreement Straz also has the option of distributing the movies on other platforms such as streaming over the internet. But that agreement allows Sony to seek additional compensation when the number of people streaming Sony's movies reaches a certain number.

So now that Netflix streaming has become more popular and many people are streaming Sony's movies, Sony would like a larger cut of the pie. But because the size of that piece of the pie has yet to be determined Starz has asked Netflix to take down the Sony Movies it was delivering.

Netflix took down the Sony-Starz movies and explained in a blog post that the movies were taken down temporarily due to a contract dispute.

Another factor in how the proceeds derived from Netflix subscribers streaming these movies is the deal between Netflix and Starz, this deal is separate from the one between Sony and Starz. The deal between STraz and Netlfix expires next spring, and Starz is likely to ask for a several time more in remuneration now that streaming has become such a popular option.

Source: Reuters "Sony movies still off Netflix in Starz dispute" Yinka Adegoke, June 20, 2011

Friday, July 8, 2011

Lawsuit alleges Harry Potter merchandise improperly used font

By Pankaj Ladhar of Manos • Alwine P.L.

Last night the film "Harry Potter and the Deathly Hallows: Part 2" premiered in London. This is the final theatrical installment in the popular series. But another drama involving Harry Potter is just going underway, though this one may not have the same compelling storyline and magical universe of the books and movies.

A company which designs typefaces has filed a federal lawsuit alleging that the Wizarding World of Harry Potter in Orlando is selling merchandise which improperly used a font that they designed. The font, known as Cezanne Regular, is allegedly used liberally on all of the Harry Potter merchandise. The company, P22 Type Foundry claims to own the copyright on the font.

The company says that the owner of the theme park, NBC Universal, did not ask for or receive permission to use the font for commercial purposes. According to online source the font is indeed very wizardly looking and it fits in well with the designs on the merchandise sold at the park.

While concern over the improper use of a font may seem trivial or mundane in comparison to wildly successful and multi faceted entertainment dynasty such as Harry Potter, both are the products of creative artists who have a right to be compensated for their work.

Of course to the design professionals who dedicate their careers to creating fonts the value and intrigue of various font styles is obvious. The complaint in this lawsuit has pegged that value as at least $1.5 million in damages.

Source: TMZ "Harry Potter and The Forbidden Typeface" July 8, 2011

Thursday, July 7, 2011

Polka singer files infringement lawsuit against ex-wife

By Pankaj Ladhar of Manos • Alwine P.L.

For songwriters the product of their craft is the music that they create. It is important to protect that product and block others from making money from work that is not their own. But there are times when songs may be similar but it does not necessarily constitute infringement of intellectual property. A recent news report talks about a polka musician who is accusing his ex and her current husband of copyright infringement for stealing a popular tune that he composed.
The man filed a lawsuit this week accusing his ex-wife of federal copyright infringement. He alleges that the woman and her current band stole the melody of his popular tune "Yodelin' Boy Polka" and wrote different lyrics to disguise the tune.
The musician wrote the song in 1978 and copyrighted it soon after. He performed the song with his then wife and their band until their 1984 divorce.

His former wife remarried and recorded a song titled "C'mon and Sing," which the musician claims is a copy of his song with the lyrics changed.

Her new husband admits that the melodies of the two songs are similar, but says that the lyrics are very different and the couple had no idea that they were copying her ex-husband's song. He says that they haven't played the song "C'mon and Sing" since receiving a letter from the musician's attorney. They also pulled their CDs that contain the song and they are no longer being sold.

The musician says that he wants them to publicly admit that they copied the song and is seeking unspecified damages in the lawsuit.

The musician claims that fans used to request "Yodelin' Boy Polka," every time their band played. He says that they must have performed the song together at least a thousand times. He doesn't believe that she didn't remember where the song was from. Throughout the years, the musician heard that the Top Notchmen, his ex-wife's band, had performed a song similar to his, but he didn't pay much attention to his ex-wife's musical career.

About 18 months ago, the man performed his song and an audience member said that he must have learned it from the Top Notchmen. He told her that he had written the song and decided to sue for copyright infringement.

Source: Star Tribune "Polka lawsuit: Wis. musician accuses ex-wife and her new husband of copying his popular tune" June 29, 2011

Friday, July 1, 2011

Lawsuit against CBS filed by 'Happy Days' cast members

By Pankaj Ladhar of Manos • Alwine P.L.

According to On the Red Carpet, an entertainment news website, CBS Network is being sued by "Happy Days" cast members. They are suing for the money they should have been given from the sale of merchandise based around the hit television show of the 1970s.

Four cast members, Anson Williams, Marion Ross, Erin Moran, and Don Most, are suing CBS over a contract dispute and for breach of contract. "Happy Days" merchandise that depicted the images of cast members was sold to thousands of consumers in the form of DVD covers, dolls, and slot machines. This merchandise is still being sold today and, according to the lawsuit, the cast has not been paid royalties from the sales.

The late actor Tom Bosley's estate is also represented in the suit. Ross, an actress from the "Happy Days" cast, reports that somebody approached her and said that she must be getting lots of money from the casinos. She had no idea what he was talking about, Ross says.

The actors' contracts state that they are supposed to earn 5 percent of the net profits from merchandise if their image is the only one on the product. They are supposed to receive 2.5 percent of the profits from merchandise with a group image on it. CBS has retained the right to deduct a 50 percent "handling fee" off the top. CBS maintains that they owe the actors about $9,000 each for merchandise sold in the last four years. CBS added that they have been working with the actors to resolve the royalty pay issues for some time.

Source: "'Happy Days' cast members file a lawsuit against CBS" Roz Zurko, June 26, 2011

Wednesday, June 29, 2011

Non-compete agreements and legal settlements

By Pankaj Ladhar of Manos • Alwine P.L.

For many businesses one of the most valuable assets is the knowledge and relationships of their employees. This can include specialized knowledge of the industry, knowledge of trade secrets and pricing information, and the relationships that the sales staff has with the company's customers.

Businesses invest significant resources in developing their employees' knowledge base. Having done this many businesses require non-compete agreements to ensure that the knowledge that they have worked so hard to develop will not be used against them by a competitor when an employee leaves the company. But attempting to enforce a non-compete agreement is easier said than done, often these dispute lead to lawsuits by businesses to protect their investment and market share.
On the other side of the coin is an employee who may have specialized skills an education that make it likely that they wilt ay in the same industry when they leave their position. An employer will generally not be allowed to unreasonably restrict an employee's ability to secure gainful employment.

The Florida business AutoNation recently decided to settle rather than litigate a non-compete agreement with a former sales manager. The sales manager went to work for a competitor to the online car sales business,

AutoNation and the former sales manager agreed that the manager would abstain from engaging in the buying or selling of any online sales leads in Georgia, Alabama, Tennessee or Mississippi though the middle of August. While sometimes business must litigate in order to protect their interests, many times the parties to a dispute like this one can engage in constructive negotiations to come to a legal settlement that allows both parties to move forward.

Source: South Florida Business Journal "AutoNation settles non-compete suit" Paul Brinkman, June 28, 2011

Friday, June 24, 2011

Would a lime by another name be less sour?

By Pankaj Ladhar of Manos • Alwine P.L.

You may be familiar with the Miami-based Lime Fresh Mexican Grill chain of restaurants that has become possible across south Florida. Now the restaurant chain has filed a trademark infringement lawsuit against another business selling Mexican food known as The Lime Truck.

The Miami restaurant took notice of the Lime Truck, when the Food Network's show 'The Great Food Truck Race' came to Miami earlier this month. In the series finally contestant tried to promote and sell food from the Lime Truck in Miami. The Lime Fresh Mexican Restaurant claims in its complaint that the Lime Truck improperly used the restaurant's logo design to confuse customers and make profits.

The Lime Truck is generally based in California when it is not on tour for the food network show. But during the taping the complaint alleges that the operators parked the Lime Truck just a few miles from a Lime restaurant once and on another occasion just yard from a lime restaurant.

The restaurant is seeking to recover any profits that the Lime Truck made in connection with the alleged infringement, to enjoin the Lime Truck from using the term 'lime' in its logo or any other way that may cause customers to be confuse it with the restaurant, and to deliver for destruction any marketing collateral that contains the allegedly infringing trademark.

For businesses which have invested time and money into developing customer awareness for their brand the idea of another company cashing in on their work is frustrating to say the least. On the other hand there are in some respects a finite number of key terms that are likely to make effective brands. If you are selling a key lime pie, for example, your advertisements will likely at least somewhat resemble those of others who sell a similar product.

Source: Miami News Times "Lime Fresh Mexican Sues Lime Truck: Lime vs. Lime" Laine Doss, June 23, 2011

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