Monthly Archives: April 2017

Quick Hits – DC Metro, evidence in arbitration, school principals and police officers


DC Metro unsuccessful in effort to vacate arbitrator’s award

The US District Court in DC has upheld an arbitrator’s award reinstating an employee alleged to have misrepresented maintenance work on Metrorail tunnel fans.  The alleged misrepresentation was discovered during an investigation of  an unrelated electrical malfunction that caused a tunnel to fill with smoke, resulting in the death of a passenger. The employee was terminated  for allegedly falsifying maintenance records of “safety critical” equipment, and being untruthful during investigative interviews. Arbitrator Ezio Borchini converted grievant’s termination to a 180 day suspension. The arbitrator concluded that the evidence showed  “systemic maintenance practices which tend toward mitigation of discipline.” These practices included the Authority’s acceptance of preventive maintenance reports which were blank on the issue of local and remote fan testing. The Authority’s effort to vacate the award has been denied by the Court. Contrary to the Authority’s arguments, the Court found nothing contrary to the cba in the Arbitrator’s just cause analysis. Rejecting the Authority’s claim that it had the reserved right to terminate employees for egregious misconduct the Court noted:

If WMATA is correct that running a safe metro requires unfettered discretion to fire employees when they breach cardinal safety protocols, its remedy lies in negotiations over a new CBA with the Union for such authority. That, however, is not what it appears to have bargained for under the current one.

The Court also rejected  claims that the award was contrary to public policy and was arbitrary and capricious. 

Arbitrator Borchini’s award can be found here. The Court’s decision here.

NJ Court rejects claim arbitrator disregarded his own evidentiary rulings, depriving employer of fair hearing

Grievant was a nurse at a psychiatric unit of an acute care hospital. During her shift, one of the patients sexually assaulted another. The hospital alleged that grievant’s  negligence  allowed the assault to take place and terminated her employment. That action was grieved and submitted to Arbitrator Jack Tillem for resolution. Arbitrator Tillem reduced the termination to a suspension and ordered the grievant’s reinstatement without back pay. Arbitrator Tillem’s award can be found here. The hospital sought to vacate the award, arguing that the arbitrator had ignored his own prior rulings excluding certain evidence, and that his award was in manifest disregard of the law. The Court denied the Hospital’s request, noting that it “has not met the ‘exacting’ burden required to vacate an arbitration award under either of its two separate theories.” With regard to the claim that the award was in manifest disregard of the law, the Court noted that it remained an open question whether this was still a viable basis to set aside an arbitrator’s award, but even if it was, the arbitrator’s claimed error in relaying on purportedly excluded evidence did not rise to the level of “manifest disregard.”
The Court’s opinion can be found here.

Pa Court confirms arbitrator awards reinstating school principals

   The Pennsylvania Commonwealth Court, here and here, has overturned lower court decisions vacating arbitrators’ awards reinstating school principals accused of involvement in a cheating scandal. Both principals were dismissed after an investigation revealed a significant number of “beneficial erasures” on student standardized tests. The investigation concluded that school employees had altered the tests to improve student scores. In both cases arbitrators found insufficient evidence that the principals had participated in the cheating but concluded that they had been negligent in allowing it to take place. They overturned the terminations and substituted suspensions.  The School District sought to vacate the awards, claiming that the arbitrators had improperly modified the discipline imposed, and that the awards were contrary to public policy. The Commonwealth Court, overturning trial court decisions, rejected both contentions. The Court  concluded that the arbitrators acted well within their authority in modifying the discipline in light of their factfinding, and that the misconduct found, i.e. negligence, did not require termination as a matter of public policy.

San Antonio PD officer dismissed for offering to fight handcuffed prisoner reinstated

A San Antonio police officer who uncuffed a belligerent prisoner and offered to fight him “one on one” was reinstated by Arbitrator Lynne Gomez. The officer had been indefinitely suspended following the incident. The Chief believed the officer was still subject to a last chance agreement because of an earlier episode, and relied on that, in part, in concluding that dismissal was appropriate.
Arbitrator Gomez agreed with the Union that the Last Chance Agreement had expired prior to the current incident and that, without that, the facts did not support just cause for termination. The Arbitrator noted that no fight actually took place, that prior to the uncuffing the officer had made repeated attempts to pacify the individual (a fact of which the Chief was not aware) and that because of the erroneous reliance on the last chance agreement appropriate progressive discipline was not considered. KSAT reports on the award (SAPD officer appeals termination, wins job back through arbitration) and the arbitrator’s award can be found here.
Source: ADR

Patents and Trademarks of World War One

A blog about the USPTO from the Department of Commerce.

This month marks the centennial of the United States’ entry into World War I on April 6, 1917, and the U.S. Patent and Trademark Office (USPTO) has taken a look back into its archives of patents and trademarks from that era.

World War I, and the years that came after it, resulted in a surge of American ingenuity and technological innovation. As soldiers faced different types of warfare, new technologies emerged such as the gas mask. One early version was a breathing device patented by African-American inventor Garrett Morgan in 1914, and subsequent inventors built on his work to create masks that protected soldiers from poisonous gases during WWI.

Father of the modern submarine, John Phillip Holland designed and built the first underwater vessel for the U.S. Navy in the late 1800s. His submarine design would become the model for the Navy’s fleet of submersibles for the next several decades.

Certain items developed for troops in WWI went on to become part of everyday life for Americans. One example is the “hookless fastener” or zipper, patented by Gideon Sundback in 1916, which the U.S. military incorporated into uniforms and boots, and also caught on quickly in civilian clothing.

Diagram from the patent application of G. Sundback's "seperable fastener."

Diagram from the patent application of G. Sundback’s "seperable fastener."

Another is the wrist watch. Before WWI, most people didn’t wear them, instead relying on clocks at home or pocket watches. But following the need for wristwatches for soldiers in the field during WWI, they became popular with the general public after the war.

During the WWI years, many products were also trademarked that are still in use today. For example, Dixie®, trademarked in 1917, developed a paper cup to prevent the spread of germs, and the company still produces an array of paper products today. Many companies included symbols of patriotism in their advertisements during the war, and WWI lore even made its way into pop culture, such as Snoopy’s Flying Ace.

Some WWI veterans were also notable inventors, such as Frank J. Sprague and Leroy Grumman, currently featured in the Visionary Veterans exhibit in the National Inventors Hall of Fame (NIHF) Museum at the USPTO in Alexandria, Va. Sprague, a graduate of the U.S. Naval Academy, developed the electric railway, early electric elevators, and the commercial electric motor. Grumman, a Navy pilot, invented a unique folding-wing mechanism for naval aircraft and later established the Grumman Aircraft Engineering Corporation, now part of the Northrop Grumman Corporation.

Follow the USPTO on Twitter and Facebook to learn more about interesting historical patents and trademarks.

Source: USPTO

News story: Tracking the status and events of a trade mark

The service is renamed as ‘Track a trade mark’ and will replace the current trade mark eAlerts service. This is a free tracking service which notifies you via email of specific events occurring to a trade mark (for both United Kingdom (UK) and International Registration (IR) trade marks).

Track a trade mark will function the same but with improvements to the look and style of the service.

The change will take effect on 27 April 2017 and the first screen will look like:

Screenshot of refreshed service.
Improved look and style of service.

We would welcome further feedback to continue to improve this service going forward. Please email any comments to feedback@ipo.gov.uk.

Source: UK IPO News

Cyber Security Law: Reinforcing the Great Firewall

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This blog post was co-authored by Anna Mae Koo (Vivien Chan IP Services) and Erika Yawger (Apple Inc.).

On June 1, 2017, the recently passed Cyber Security Law (the “Law”) will come into effect in in China. The Law is widely applicable to all entities with Chinese operations, and in many ways simply codifies traditional government restrictions on Internet usage. In general, the new Law tends to reinforce the Chinese government’s determination to maintain Internet safety and national security, while protecting the domestic public’s interests through censorship and regulations. Several key portions of the new Law are summarized below.




Regulation Scope




Article 2 stipulates that the “construction, operation, maintenance and use of the network within China” shall be governed by the Law, essentially covering all networks that are being used in China. Article 75 further establishes that other than injunctive measures, the assets of foreign entities or individuals engaging in activities that endanger the critical information infrastructure may be frozen. While it remains uncertain as to how this will be enforced on foreign entities, network operators are subject to additional obligations, as described below.




Network Operators




Article 21 requires network operators to implement a “graded network security protection system” to monitor and record the status of network operations and preserve network logs for at least six months. Network operators are also required to identify the users’ real identity when signing service agreements (Article 24). 




“Critical Information Infrastructure” Operators




Sectors that are considered “critical information infrastructure” have heightened monitoring requirements and are subject to other enhanced regulations under the Law. Article 31 provides a list of types of activities that could be considered “critical information infrastructure,” including public communications and information services, energy, transportation, water conservancy, finance, public services, and e-commerce governance. The services enumerated are not exhaustive, and the Law leaves open the possibility that any service that might endanger national security, welfare, popular livelihood, or public interest if destroyed or hacked could be subject to these heightened regulations. 




The Law states that “critical information infrastructure” operators must store important data within China (Article 37), and that overseas disclosure of such information is allowed only after security assessments by the authorities. Companies will also be subject to additional monitoring and security checks.




Data Protection




There are new provisions that limit the type and amount of personally identifiable information that can be collected and transferred (Articles 41–43). In addition, the identities of informants of contraventions to the authorities will be kept confidential (Article 14), and use of end users’ data shall be limited and only used if it is in the course of protecting cybersecurity (Articles 30). 




Heavier Penalties




The Law imposes heavy fines and other penalties for noncompliance. Companies can face fines of up to US $150,000 for violations of the Law, and agencies have broad authority to revoke business licenses and shut down websites for serious violations (e.g., illegal storage of data abroad by Critical Information Infrastructure providers; assisting or engaging in activities that endanger cybersecurity; failing to request users’ real identity information, etc.).




Conclusion




The Cyber Security Law introduces serious penalties and sanctions, affecting all entities that use or control a network used in China. We are still awaiting clarification on the implementation and enforcement of these sanctions; however, an audit of one’s own network use in China is recommended to avoid potential contravention of the Law. 







Published: 4/28/2017 7:29 AM

Source: TM NEWS

The Times 2017 Intellectual Property Report is Now Available

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IPReport_2017blog.PNGThis year, INTA is once again an official supporting association of Raconteur’s (The Times) annual intellectual property special report, which was published in The Times on April 26. 




Together, Raconteur and INTA have created an engaging 20-page report that illustrates the value of IP and educates the senior business community as to why IP strategy should be recognized as a core competence. Collating the thoughts of renowned academics, industry commentators, and some of the most high-profile thinkers in this field, the report investigates the rapidly changing terrain of IP and showcase IP’s most exciting developments and initiatives 




With the Brexit negotiations looming, INTA CEO Etienne Sanz de Acedo contributed an op-ed article for the report, providing insight into how innovation, driven by brands in order to remain competitive, is not only beneficial for companies but for national economies and consumers too.




You can read and share all of the articles from the report online here, and download the full PDF version of the report here.







Category: Europe
Published: 4/27/2017 5:23 AM

Source: TM NEWS

INTA Celebrates World IP Day

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INTA is busy this week celebrating World IP Day​.




India │ INTA will be attending the National IPR Conference on the “Expanding IP Ecosystem in Industry,” followed by the National Intellectual Property Awards ceremony, in New Delhi tomorrow in celebration of World IP Day. This one-day event is held each year to recognize and reward the organizations and people that have contributed to harnessing the country’s intellectual capital and have helped to create an ecosystem that boosts creativity and innovation. This event takes place tomorrow, April 27. 




Indonesia │ On April 25, INTA sponsored and participated in a World IP Day trademark examiner training program in Indonesia. The training focused on well-known and nontraditional trademarks. The event was coordinated in cooperation with the Indonesian Anti-Counterfeiting Society (MIAP) and contained a diverse set of topics on the enforcement of trademarks. Speakers from INTA, the Directorate General Intellectual Property Rights (DGIP), and MIAP participated in sharing best practices in prosecution and enforcement with the attendees. 




Singapore │ In Singapore yesterday, the Unreal Campaign presented on the importance of trademarks to 240 students at Crescent Girls’ School. Our thanks to Low Pei Lin and Ms. Gloria Goh from Allen & Gledhill, and Alvin Lee, Director at Government and Public Affairs at LEGO Singapore Pte Ltd, for making this presentation. 




Vietnam │ The Unreal Campaign is celebrating World IP Day all week long by educating young consumers on the importance of intellectual property and the dangers of counterfeit goods. Today in Hanoi, Vietnam, 2017 Unreal Campaign sponsor Tilleke & Gibbins is organizing an event for 100 students at Hanoi Law University (HLU). 




United States │The Unreal Campaign is also in Anaheim, California, this week discussing the dangers of counterfeit goods with students from DECA—a not-for-profit student organization with more than 215,000 high school members interested in careers in marketing and entrepreneurship. The event this week in California has over 19,000 students in attendance!




And today, in Washington, D.C., the U.S. Patent and Trademark Office (USPTO) will be moderating a World IP Day panel. INTA President, Joseph Ferretti (PepsiCo, Inc.​) will be sitting on that panel in collaboration with: 




  • John Sandage, Deputy Director, General World Intellectual Property Organization;
  • Frank Cullen, Executive Director, U.S. Policy, Global Intellectual Property Center, U.S. Chamber of Commerce; and
  • Lisa K. Jorgenson, Executive Director, American Intellectual Property Law Association (AIPLA).




There will also be keynote presentations by Mario Bollini, Co-founder and Chief Technology Officer at Global Research Innovation and Technology, Inc., and Tobie Hatfield, Senior Director of Athlete Innovations and Explorations at Nike, Inc. 




For more information on INTA’s World IP Day activities, check out an upcoming issue of the INTA Bulletin







Published: 4/26/2017 12:10 AM
BlogTag: Unreal; Anticounterfeiting; Brands

Source: TM NEWS

World IP Day 2017: Innovation Ahead

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IP_Day_Posters_E_2017-healthcare_blog.pngApril 26 is celebrated as World Intellectual Property Day. The World Intellectual Property Organization (WIPO) uses this opportunity to increase the visibility of intellectual property rights (patents, trademarks, industrial designs, copyright) and their role in encouraging innovation and creativity. This is certainly a worthwhile effort in an era when our societies have yet to fully embrace the concept and benefits of IP protection, even as the means of best implementing such protection must continually evolve as the technological landscape rapidly changes.




This year, World IP Day directs its attention to exploring “how innovation is making our lives healthier, safer, and more comfortable, turning problems into progress.” (WIPO, http://www.wipo.int/ip-outreach/en/ipday/.) The intention is to look at “how the intellectual property system supports innovation by attracting investment, encouraging creators to develop their ideas, rewarding those creators, and ensuring that their new knowledge is freely available so that tomorrow’s innovators can build on today’s new technology.” 




This goal largely overlaps with the aims of the International Trademark Association (INTA) and, specifically, with the objectives of INTA’s Brands and Innovation Committee (B&IC). Its mission is to examine the relationship between brands/trademarks and innovation, with a focus on how brands promote innovation and drive the economy, and how innovation impacts brands, brand owners, and trademark-related issues.  The committee aims at producing policy recommendations and developing resources for INTA members to anticipate and respond to the impact of innovation on their brands, their companies, and their industries. 




One of the committee’s first achievements is the development of working definitions of brand and innovation. Brand means the total identity of a product, service, organization, individual, or any item to which people relate and connect intellectually, psychologically, and emotionally.  Brand is a complex, multi-layered promise by the owner of a consistent level of quality, and of what will be delivered and experienced. There can be no doubt that, in accordance with the definition, a brand will change as the social context in which it exists changes.




Regarding innovation, the proposed working definition is: a change that makes a difference in any particular societal context and that alters the manner in which markets or society interact or operate. 




IP_Day_Posters_E_2017-learning_blog.pngIn order to be able to trace the societal changes influenced or triggered by innovation, B&IC coordinates its work with other INTA committees such as the Emerging Issues Committee and the Designs Committee. Issues being considered include new technologies such as three-dimensional (3D) printing, artificial intelligence, and robotic process automation as well as wearable computing. Additional topics will probably consist of brain-machine interfacing , virtual reality and IoT (Internet of Things). We may also need to reflect on the potential impacts of important breakthroughs in the nano field and CRISPR and gene modification technologies. It is, however, challenging to determine priorities, since these technologies are developing rapidly, constantly shifting in their prospects and possible impacts while simultaneously converging and morphing.




INTA and its members are excited about the potential of these technologies for our societies in terms of progress and change. However, we are also mindful of the need to use and introduce these technologies in responsible and sustainable ways and to ensure a high level of ethical consideration—even higher perhaps than with traditional technologies. In this sense, we should keep in mind that the force of the innovation is such that, when amplified through the power of the markets, disruption becomes a constant rather than the exception. Altogether, it is becoming abundantly clear that intellectual property is moving far out of the traditional confines of the Paris and Berne conventions and is entering into uncharted territories where ethical boundaries will become paramount.




Those of us who have trust in the potential of technology to bring positive change to our societies would not like to see innovation being perceived negatively, as is the case, for instance, for globalization.  Although many of us were hopeful that globalization would be a process bringing individuals and societies closer and enabling increased interaction and collaboration, many of our fellow citizens are feeling that the consequences of the process are the opposite. It would be tragic if the power of innovation attracted and generated the same negative connotation. This is why we need to study the changes closely, understand them, and harness their dynamism so as to embrace them fluidly rather than clash against them.




Mladen Vukmir (Vukmir & Associates, LLC, Zagreb, Croatia) is the Brands and Innovations Committee, Vice-Chair at INTA. 




Published: 4/26/2017 4:09 AM

Source: TM NEWS

Does Mediation need a version of the New York Convention? Part 2

Following on from our previous post, Part 2 makes the case for a new convention

The Rationale for a New Convention

One might contend that a settlement through mediation is inherently resistant to non-compliance by parties: parties have developed the resolution themselves during candid discussion in a confidential setting. Indeed, although empirical evidence on whether enforcement is a problem is sparse, most commentators agree that there is no widespread issue with parties refusing to honour their iMSAs; so what, then, is the point of all this?

A recent anonymous survey of 221 industry professionals (35% private practice, 28% mediators and the rest academics) analysed by S.I. Strong (Realizing Rationality: An Empirical Assessment of International Commercial Mediation) highlighted that even though practitioners don’t perceive a problem with the current regime, there are other, more compelling reasons to move towards some sort of international harmonisation of the legal framework underpinning iMSAs.


Source: JAMS ADR

Court rejects arbitrator’s past practice analysis, denies claim for commuting benefit

The NJ Appellate Division has upheld a lower court decision vacating an arbitrator’s award, finding the arbitrator’s analysis “illogical” and in excess of his authority.  In  State of NJ (Division of State Police) v. State Troopers Fraternal Association the Court rejected the Union’s efforts to confirm an award ordering the State to reimburse State Troopers for commuting expenses incurred on the state’s toll roads.

The Court noted that the essential facts were undisputed:

…they can be summarized briefly. For many years, the New jersey Turnpike Authority and the South Jersey Transportation Authority – independent authorities that operate theState’s major toll roads – allowed State Troopers to travel over those roads in their personal vehicles without paying tolls. As a result, the Troopers were able to commute to and from work without incurring that expense.


In November 2010, the two authorities notified the Division of State Police that they would no longer provide toll-free passage to Troopers commuting to and from work. When the Division declined to reimburse Troopers for the toll-related commuting expenses, the Troopers Association filed a grievance challenging what it described as the “unilateral suspension of non-revenue toll road passage.” The Union alleged that the Division’s refusal breached the maintenance of benefits provision of its cba. 


The arbitrator sustained the grievance, concluding that the provision of toll-free passage was a benefit of a type that was negotiable and that reimbursement had become an established past practice. The Division sought to vacate the award, and the superior court granted that request. The court found that the arbitrator exceeded his authority and made a mistake of law by reading into the cba a term not found there and that the award was not a “reasonably debatable” interpretation of the contract. 


On the Union’s appeal, the Appellate Division affirmed. It noted:

…the arbitrator’s discussion of the third-party nature of the benefit was illogical. Under the stipulated facts, the privilege of toll-free commutation was a gratuitous benefit provided by the Authorities, and not a benefit provided by, agreed to, or controlled by the Division. The toll-free arrangement was a “past practice” between the Authorities and the Troopers, not between the Troopers and the Division. 

The Court found further that toll-free commutation was never a benefit actually provided by the Division, either directly or by agreement with the Authorities, and was therefore not covered by the maintenance of benefits provision.  



Source: ADR