Riddle me this—how can a company be liable for trademark infringement when the infringing material is invisible to a consumer?  The answer—by using trademarked phrases in a company’s metatag.
 

Not according to the Seventh Circuit! Human Resource professionals are well aware of the challenges presented when an employee’s medical condition requires more time off than available to the employee under standard company leave or Family and Medical Leave Act policies.  The critical questions in those situations are:  1) Does the employee’s condition qualify as a disability? 2) If so, must additional leave be provided as a “reasonable accommodation” under the Americans with Disabilities Act? 3) What if the need for additional leave involves extensive time off?
 

Not according to the Seventh Circuit! Human Resource professionals are well aware of the challenges presented when an employee’s medical condition requires more time off than available to the employee under standard company leave or Family and Medical Leave Act policies.  The critical questions in those situations are:  1) Does the employee’s condition qualify as a disability? 2) If so, must additional leave be provided as a “reasonable accommodation” under the Americans with Disabilities Act? 3) What if the need for additional leave involves extensive time off?
 

In March 2017, the United States Supreme Court resolved a copyright dispute between two manufacturers of cheerleading uniforms. The case, Star Athletica, L.L.C. v. Varsity Brands, Inc., focused on an unresolved question: to what extent, if any, does the utility of an article on which pictorial, graphic, and sculptural works are placed affect whether such works are copyrightable?
 

Whether as a self-proprietor or as an employee, you have probably spent a good portion of your adult life dedicating your time and energy to growing your business.  You have made many sacrifices in order to focus on developing that one product or process that will provide a competitive advantage for years to come, or devoted countless hours to landing that key customer that will take your business to new heights.  But now that you have developed the proprietary process or significant customer account, how do you safeguard them?
 

“Which is better: a Limited Liability Company or an S corporation?”  This common question blurs two distinct concepts: how an entity organizes for corporate governance purposes and how an entity classifies itself for tax purposes.  Because the vast majority of small business are LLCs, the more appropriate question is “what tax election is best for an LLC?”  The answer, of course, is it depends.
 

On June 19, 2017, the United States Supreme Court ruled in an 8-0 decision (Justice Neil Gorsuch not participating) that the disparagement clause of the Lanham Act, 15 U.S.C. § 1052(a), violates the First Amendment’s free speech clause.
 
 

The Limited Liability Company (LLC) has quickly become the most popular entity choice for new businesses.  According to the Wisconsin Department of Financial Institutions, of the 38,869 domestic businesses newly formed in 2016, 34,067 (nearly 88%) were LLCs.  Among the primary reasons for the popularity of the LLC are the lack of formalities required to form and operate an LLC.  An LLC can be formed online with a few simple clicks and keystrokes by anyone with an internet connection.  Unfortunately, far too many businesses stop there (often out of the desire to save a buck) and fail to take the necessary steps of drafting an Operating Agreement that sets out the relationship between the owners of the LLC.
 

Bill O’Reilly’s $25 million “departure package” from Fox News recently put severance agreements back in the public limelight.  However, well before the O’Reilly saga began, severance agreements have been the focus of increasing judicial and agency scrutiny.  That scrutiny has included new challenges to many traditional severance clauses and the enforceability of many “standard” severance agreements.  Given these developments, HR professionals should exercise extreme caution when drafting severance agreements, even if the agreement does not involve the type of dollars offered to Mr. O’Reilly.  
 

The Ninth Circuit Court of Appeals recently took up the question of whether the purchaser of a copyrighted work can import the item into the United States and sell the good without obtaining permission from the copyright owner.

Human Resources professionals occasionally receive requests for FMLA leave when an employee is unable to arrange for day care services for their child. While in many cases FMLA leave is not available for routine “babysitting,” a full evaluation of all the facts must be performed before the request is denied. A Wisconsin company recently learned this lesson the hard way - its misunderstanding of FMLA family care provisions resulted in a jury award of significant damages to its employee.

The United States and the European Union have strikingly similar laws regarding liability of online marketplaces for third-party content posted on their websites. Nonetheless, the approaches American courts and European courts take to address the issue, are drastically different. This extreme divergence is best illustrated by the American case, Tiffany v. eBay, and the French case, LVMH v. eBay.
 

Numerous conflicts exist between federal and state laws regarding the legality of medical marijuana use.  One issue resulting from the conflict is a cannabis company’s inability to obtain trademark protection for its brands.  Under federal trademark law, a trademark registration will only be granted in connection with goods and services lawfully regulated by commerce.  Because marijuana, a Schedule 1 controlled substance, is illegal under federal law, marijuana and related paraphernalia are incapable of procuring trademark registration.  

On Wednesday, May 11, 2016, President Obama signed the Defend Trade Secret Act of 2016.  This new law, along with the Theft of Trade Secrets Clarification Act of 2012, significantly improves the ability to protect Trade Secrets.

Several major amendments to the Wisconsin unemployment law were enacted in January of 2014.  The changes were intended to tighten eligibility standards for receipt of unemployment, thus providing relief to employers’ unemployment accounts and the state unemployment fund, which was experiencing a significant shortfall.  

Among the key changes were modifications of eligibility standards for employees who are terminated for “misconduct.”  Employers were optimistic that the new changes would add clarity to the definition of “misconduct,” and would make it more difficult for employees who fail to comply with workplace rules or expectations to successfully pursue unemployment claims.

As many Human Resource professionals know, union organizing has been picking up steam, following the recent implementation of “Quickie-Election” rules, “Mini-Bargaining Units” and other pro-union rulings by the National Labor Relations Board.  Although unions have adopted modern methods of communicating their marketing pitches (such as Facebook campaigns, Twitter messages, text messaging, e-mail blasts), as well as more traditional methods (such as public rallies and mass postal mailings), the most efficient method of convincing workers to unionize remains the face-to-face conversation.  And union organizers understand that the best way to initiate a face-to-face conversation is at work.

Over the past few years, E-readers, such as Amazon's Kindle and Barnes and Noble's Nook, have become very popular.  It is not hard to understand the increased popularity of this technology.  An E-reader is able to store a library's worth of content and still be small enough to fit in a purse or briefcase.  The software for many of these devices can also be downloaded onto an I-Pad or tablet, leading to an increased number of people reading digital books.  Yet all this progress may have an unintended cost, namely the inability to lend a digital book.

The use of independent contractors to supplement a workforce has long been a source of conflict between employers and government agencies.  Among other things, employers desire the perceived freedom an independent contractor relationship brings (no need for emotionally laden discipline, layoffs, or firings), the lower investments in recruiting and training, and the significant savings in payroll taxes, overtime, and benefit costs. 

Earlier in July, the Centers for Medicare & Medicaid Services (CMS) announced plans to reimburse physicians for consultations regarding end-of-life planning.