North America

Off-colour Trademark Decision Leaves Glaxo Purple With Frustration

In reasons issued late last year, the Federal Court of Appeal has upheld a decision to expunge a trademark registration obtained by Glaxo Group Limited (“Glaxo”) for two-tones of the colour purple as applied to the visible surface of an asthma inhaler. The decision raises interesting questions both about primary and secondary marks, and about the amount of evidence necessary to support a finding that a mark is distinctive.

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Supreme Court Rules that Fiancé of Protester Is Protected from Retaliation


EBG Partners Peter M. Panken, Frank C. Morris, Jr., Peter A. Steinmeyer, and Michael S. Kun discuss the U.S. Supreme Court’s recent decision in which the Court significantly expanded employee protections against retaliation by employers.  In Thompson v. North American Stainless, LP, __ U.S. __ (Jan. 24, 2011), the Court held that protection from retaliation extends not only to those employees who themselves oppose alleged discrimination or file a charge or otherwise participate in a proceeding, but also to the fiancé of an employee who filed a charge of discrimination against their common employer. 

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The issue of « estoppel » resulting from the contents of a reservation of rights letter addressed by the insurer to the insured has been the object of a fair number of judgements in recent years. Another judgement has been rendered recently that will be helpful in determining the extent of the insurer’s duty in that respect. That judgement was rendered on October 22nd, 2010 by the Honorable Manon Savard, SJC, in Nicholas Smith, ès qualité c. Solution Air Pro Inc. et al

Downlaod the publication (pdf)

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Massachusetts Legislators Refile Modified Non-Compete Legislation

Last year, I reported on the status of a new non-compete bill that, for the first time in Massachusetts, attempted to codify its non-competition law. After summarizing the details of the bill in April, I reported in October that the bill had died in Committee. However, as stated at that time, Senator Brownsberger, one of its sponsors, promised to present a new bill on the same subject in a future session. Well, the future is now.

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Delayed Request for Preliminary Injunction to Enforce Non-Compete Agreement Denied in Alabama

In a January 21, 2011 opinion and order, a federal district court in Alabama denied a request for a preliminary injunction from clothing manufacturers Fruit of the Loom, Inc. and Russell Brands, LLC, seeking to prohibit a former employee from continuing to work for a competitor. (Fruit of the Loom, Inc. and Russell Brands, LLC v. Lonnie C. Bishop, Middle District of Alabama 2:2010cv01058). Plaintiffs requested the injunction pending their lawsuit to enforce a Kentucky non-compete agreement against the former employee. Although Kentucky courts generally enforce non-compete agreements where the restraint is no greater than reasonably necessary, this case demonstrates the practical difficulties of enforcement. Even in cases where an employer is successful in an action to enforce a non-compete agreement, the benefit of the agreement can be substantially eroded where a former employee is not immediately prohibited from working for the employer’s competitor.

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Proposed Illinois Covenants Not To Compete Act Introduced Again In the Illinois House of Representatives

Co-authored by Christie O. Tate.

As we reported in this blog on March 1, 2010, last year the proposed “Illinois Covenants Not To Compete Act” was introduced in the Illinois House of Representatives. If passed, it would have substantially altered the law regarding non-competition agreements in Illinois. We have been monitoring the progress of the bill, which was re-introduced on January 12, 2011 as House Bill 0016 in exactly the same form as last year. As before, the bill has not attracted significant public attention or commentary, but we will continue to monitor it. For a detailed analysis of the proposed law, please see our original post on March 1, 2010.

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Immigration Alert: January 2011

USCIS Issues Revised Form, I-129 Petition for Nonimmigrant Worker, that Includes Questions Relating to Export Controls and “Deemed Exports”

USCIS Issues New M-274 Handbook for Form I-9 Compliance

ICE Touts 2010 Worksite Enforcement Efforts

DHS Issues Regulatory Agenda that Includes Plans for New Form I-9 Rules

ICE Announces Opening of Employment Compliance Inspection Center

Supreme Court Hears Oral Arguments in Whiting

DOS and CBP Implement Tougher Blanket L-1B Visa Application and Travel Requirements for L-1 Employees

CBP Expands Global Entry Pilot to Mexican Nationals

January 14, 2011 H-1B Cap Count

DOS Issues February 2011 Visa Bulletin

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Special Immigration Alert: H-1B Cap Reached for Fiscal Year 2011

On January 27, 2011, U.S. Citizenship and Immigration Services (“USCIS”) announced that it had received a sufficient number of new H-1B petitions to reach the statutory cap for fiscal year 2011 (October 1, 2010, through September 30, 2011), and that January 26, 2011, was the final receipt date for new H-1B petitions requesting an employment start date in fiscal year 2011. USCIS also indicated that the final receipt date would be the date on which it physically received the petition, not the date on which the petition was postmarked. The USCIS notice stated that the agency will reject any cap-subject H-1B petitions that arrive after January 26, 2011.

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Ontario Teachers Get A Lesson In Trademarks

The Federal Court of Canada has upheld a decision of the Registrar of Trademarks to refuse registration of the mark TEACHERS’ in association with services described as “administration of a pension plan, management and investment of a pension for teachers in Ontario”.  The application to register this mark was filed by the Ontario Teachers’ Pension Plan Board.

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New York Appellate Court Refuses to Recognize Oral Extension of Two-Year Non-Compete Clause

A December 30, 2010 decision of New York’s Appellate Division, Fourth Department, in James V. Aquavella, M.D., P.C. v. Viola, should be noted by legal practitioners dealing with issues of enforceability of non-competition agreements.

The plaintiffs — an ophthalmologist named James V. Aquavella, M.D. and his professional corporation — sued Ralph S. Viola, M.D., an employee who in 2002 resigned and opened a competing practice within 300 yards of the plaintiffs’ practice. Plaintiffs claimed breach of a non-compete provision that, they argued, barred Viola from competing with plaintiffs for two years.

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