Legal Updates

Trade Secrets

The European Parliament has recently approved a new Trade Secrets Directive, which is expected to come into force following approval by the European Council when they vote in May.

The rationale behind the new Directive is that current protection of trade secrets varies widely across the EU and this poses a risk to cross border investment. In a consultation on the proposed Directive in 2013, it was found that companies considered trade secrets highly important for development and competitiveness and a significant majority had concerns about current protections, such as the risks of operating in Member States with weaker protection and the costs of preventative measures. The EU press release regarding the Directive states that 1 out of 5 companies is a victim of theft of trade secrets every year. 

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New Rights and Obligations for Employers Under the Defend Trade Secrets Act

President Barack Obama on May 11, 2016 signed the Defend Trade Secrets Act (DTSA), which provides a federal private right of action for the misappropriation of trade secrets. Companies were previously only able to bring civil actions for trade secret protection in state court under various state laws. Under the new law, trade secret owners can pursue claims in federal court and apply for an order to seize property to prevent the dissemination of trade secrets. The DTSA also provides for remedies including injunctive relief and damages for actual loss, unjust enrichment and a reasonable royalty amount.

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LexCounsel Law Offices LexUpdate – May 24, 2016

Intellectual Property

Government approves National Intellectual Property Rights Policy: “Creative India; Innovative India” – TheGovernment of India has approved the National Intellectual Property Rights (“IPRs”) Policy which is stated will lay the future roadmap for intellectual property in India. The Policy has the following objectives:

· IPR awareness and promotion: Outreach and Promotion – To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
· Creation of IPRs – To stimulate the generation of IPRs.

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Self-Regulatory Principles Applied for First Time to Mobile Apps and Discussed at DAA and ASRC Events

The advertising industry’s self-regulatory enforcement group issued its first actions applying its mobile principles.

The Online Interest-Based Advertising Accountability Program (the Accountability Program) administered by the Advertising Self-Regulatory Council (ASRC) issued three decisions applying the Application of Self-Regulatory Principles to the Mobile Environment (the Mobile Principles) under the Self-Regulatory Principles for Online Behavioral Advertising (the OBA Principles) set forth by the Digital Advertising Alliance (DAA). The Mobile Principles address the unique aspects of the mobile environment and are designed to maintain a consistent approach to notice and choice for interest-based advertising (IBA).

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Will Sad Facts Make Bad Law?

Despite popular opinion, lawyers and judges are human and sometimes the facts of a case make it near impossible for judges to play the role of the modest umpire calling balls and strikes described by Chief Justice Roberts in his confirmation hearing.  Sometimes, bad facts make bad law because the plaintiff is so sympathetic that the just ruling may not be the “right” one.  Fachon v. U.S. Food and Drug Administration et al., appears to be the epitome of this.

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Supershuttle Loses Rebuttal – Canadian Registration Scuttled

In a recent Federal Court of Canada (the “FC”) decision, 2015 FC 1259, the FC dismissed an appeal by Supershuttle International, Inc. (“Supershuttle”) to overturn a decision of the Registrar of Trade-marks (the “Registrar”), expunging its Canadian trade-mark registration for SUPERSHUTTLE (the “Mark”) for non-use.

Supershuttle provides ground transportation services to and from airports in cities that are all located outside of Canada.  Canadians wanting to utilize Supershuttle’s services can and do book tickets and make reservations through their website, which is accessible to persons who are physically in Canada.  In December 2003, Supershuttle registered the Mark in Canada for use with “airport passenger ground transportation services” (the “Registered Services”).

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Sickness absence

Two recent court decisions have highlighted issues surrounding sickness absence, which provide some very useful guidance for employers when dealing with this issue. The first of these concerned the contractual status of absence procedures and the second a situation in which an employee was exaggerating the severity of an injury.

Absence policy incorporated in contract

In Department of Transport v Sparks and Others, the Court of Appeal upheld a finding that procedures in a staff handbook regarding absence management had been incorporated into the employees’ contracts of employment.

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Maryland Expands State Equal Pay Act and Broadens Employees’ Right to Discuss Wages

Maryland has now joined New York and several other states that have recently passed legislation expanding state equal pay laws and/or broadening the right of employees to discuss their wages with each other (often called “wage transparency”). The Equal Pay for Equal Work Act of 2016 (“Act”), signed by Governor Hogan on May 19, 2016 and set to take effect October 1, 2016, amends Maryland’s existing Equal Pay law (Md. Code, Labor and Employment, §3-301, et seq.), which applies to employers of any size, in several significant aspects.

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New State Legislation Seeks to Curb “Drive By” Lawsuits and Service Animal Fraud

Service DogDespite the noble purpose for Title III of the ADA, businesses have long been frustrated by the ease in which Title III and its state and local equivalents can be exploited by serial plaintiffs/attorneys looking to make money instead of enforce the law.  Similar feelings arise from the inability of businesses to combat fraud tied to accessibility.   In an effort to address these concerns, recent developments at the state law level are ushering in a welcome change in the way certain accessibility issues are addressed.  California is strengthening its existing limitations on the ability of a plaintiff to file a “drive by” litigation alleging inaccessible structural elements under state law.  Colorado may soon adopt criminal penalties for individuals found to have fraudulently misrepresented an animal as a service dog.  While both of these measures are relatively modest in scope, they reflect a positive trend in legislation to try and limit accessibility litigations to legitimate claims.  Businesses can only hope these initiatives (and ones with even greater scope) gain traction in other states across the country and, ultimately, at the federal level.

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Employers Face Significant Increase in Required Salary Level for Overtime-Exempt Employees

The U.S. Department of Labor (DOL) recently issued its Final Rule addressing the minimum salary requirements for employees who are classified as exempt from overtime pay.

Under the Fair Labor Standards Act (FLSA), employees who are exempt from overtime under the commonly utilized executive, administrative and professional exemptions must: (1) be paid a predetermined and fixed salary that cannot be reduced based on variations in the quantity or quality of work performed; (2) be paid at a specified minimum salary level; and (3) perform primarily executive, administrative or professional duties, as defined in the FLSA regulations.

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