Welcome to the Spring 2011 Edition of the G&C Newsletter. During the past few months we have grown the Firm with the addition of Robert Benjamin, Beverly Berneman, Barry Siegal and Ashley Orler.

These additions were made to expand the Firm’s ability to provide superior services to our clients in the areas of commercial litigation, bankruptcy, estate planning and employment law. We have also added an intellectual property component to our practice to address IP issues which many of our clients face on a regular basis.

All of these changes continue our promise to you of “Your Success–Our Focus”.

-Stephen L. Golan
 Managing Partner

Did you know that “zipper” was once a registered trademark? In fact, the original product was generically known as a “hookless slide fastener” until B.F. Goodrich coined the catchy “Zipper” brand name.

But B.F. Goodrich lost the competitive advantage of the name when the public adopted it as a generic term and B.F. Goodrich failed to take any steps to protect it.

Your trademark identifies both you and your product. As time goes on, your customers or clients associate your trademark with the quality of your product. The Lanham Act (15 U.S.C. §101 et seq.) protects the use of trademarks in commerce. Federal registration of your trademark with the United States Patent and Trademark Office (PTO) provides the basis for protection of the mark. The following steps will help you preserve your rights in your mark:

Keep using your mark. As you use your mark, you establish goodwill associated with it. The trade identity you establish with your mark requires continuous use in commerce and in connection with your goods and services. The requirement of continuous use in connection with your goods and services persists even after registration. Sporadic, casual or nominal use will not suffice. The Lanham Act presumes that you have abandoned the mark if you fail to use a mark for more than three years. Also, if you license your mark to someone else, you must monitor their use of the mark in order to preserve it.

Renew the registration of your mark with the PTO. Federal registration of the mark lasts ten years. However, in order to preserve the registration, certain documents must be filed with the PTO. Sometime during the fifth year of the registration, but no later than the sixth anniversary of the registration, you must file an affidavit of use. This assures that you have continued to use the mark in commerce during the proceeding five years. At the end of ten years, registration of the mark can be renewed by filing an affidavit of continued use. Once you file your affidavit in the fifth year of the registration, your mark becomes incontestable. Once this occurs, no one can challenge your rights in the mark unless it either becomes generic or fraud was used to procure the registration. Failure to file these affidavits can result in cancellation of the mark.

Do not allow your mark to become generic. As a mark becomes famous, the public may begin using the mark as the generic name for the product or service. For instance, Xerox Corporation zealously protects the use of its mark as an identifier of copiers and not as the name for the product itself. Always identify the product distinctly from the mark. A trademark that has gathered sufficient identity with a product or service can give you an advantage in the market place. Developing a program to preserve the trademark will only enhance the value of the mark.

Ashley Orler, previously a judicial clerk with the Hon. Kathleen M. Pantle in the Circuit Court of Cook County, Chancery Division, is a 2008 graduate of Loyola University Chicago School of Law. While at Loyola, Ms. Orler served as an Executive Board Member and Symposium Editor for the International Law Review and completed an externship with the Hon. Samuel Der-Yeghiayan of the District Court for the Northern District of Illinois. Ms. Orler received her Bachelor of Arts in Political Science and History from the University of Michigan in 2005.Ms. Orler’s practice at Golan & Christie will focus on commercial litigation and labor and employment law.

Business disputes are a common (if unwelcome) part of operating any commercial enterprise and sometimes parties end up in court. Even if you believe a lawsuit is completely frivolous, attempting to ignore a legal proceeding is never a good idea. Once a judgment is entered, the creditor has a number of tools at its disposal to attempt collection. The most common is the Citation to Discover Assets and its cousin, the Third Party Citation. Served upon the Judgment Debtor – either by serving an officer of the company or by serving its Registered Agent – a Citation carries the full force of law.

What is a Citation? A Citation is a court order directing its target (the Judgment Debtor itself or, with a Third Party Citation, someone doing business with a Judgment Debtor) to halt all transactions involving the Judgment Debtor’s property or assets, disclose all such property or assets, and hold them for the benefit of the Judgment Creditor. Failing to comply with a Citation risks being held in contempt of court and the sanctions available to the Court for findings of contempt are significant,

Who is at Risk? This process is especially perilous for the Registered Agent who, having accepted service of the Citation, faithfully forwarded it to the Judgment Debtor and thought nothing more about it. However, if the Judgment Debtor fails to appear in court and answer the Failin g to Res pond to Court Cit ati on or Summons Can Land You in Jail Citation, the Registered Agent, having accepted service on behalf of the Judgment Debtor, will be held responsible for the Judgment Debtor’s failure to appear. A judge can then issue a Rule to Show Cause why the Registered Agent should not be held in contempt of court…or even a Writ of Body Attachment, which would require a Sheriff to arrest the Registered Agent and hold them in jail until the Citation has been resolved. Similarly, a customer or vendor of the Judgment Debtor served with a Third Party Citation must comply or risk a contempt finding and sanctions.

What Should You Do? These dire consequences can be avoided by responding timely and appropriately. Having competent counsel at your side, whether you are a Judgment Debtor or a Registered Agent, will help you navigate treacherous waters.

On March 22, 2011, the U.S. Supreme Court issued its decision that an employee who makes an oral complaint, rather than a written one, is still protected by the anti-retaliation provisions of the Fair Labor Standards Act (FLSA). The case, Kasten v. Saint-Gobain Performance Plastics Corp., involved an employee who verbally complained to his employer about the placement of the time-clock used by employees, claiming that the location prevented workers from receiving credit for the time they spent donning and doffing work-related protective gear. The employee also claimed that his subsequent termination was retaliatory and that the real reason the company fired him was because he told his supervisor and a member of the company’s human resources department that he thought the placement of the time-clock was illegal and that he was considering bringing a lawsuit about it.

Although a separate legal proceeding determined that the time-clocks were placed improperly, the trial court granted summary judgment for the employer on the employee’s retaliation claim, reasoning that a verbal complaint did not qualify for the FLSA’s anti-retaliation protection. On appeal, the 7th Circuit of the U.S. Court of Appeals agreed and upheld the ruling in favor of the employer. However, the Supreme Court reversed and held that not providing protection to verbal complaints would discourage employees from using informal workplace grievance procedures.

The most important take-away message for employers is that you have to train your managers and human resource departments to recognize when a conversation with an employee who is upset about something rises to the level of a legally protected complaint. This case also underscores the frequency with which many employers make costly mistakes regarding their compliance with the FLSA and other wage and hour laws.

More than two years ago, Congress passed the ADA Amendments Act (ADAAA), which went into effect on January 1, 2009. In March 2011, the Equal Employment Opportunity Commission (EEOC) issued regulations interpreting the ADAAA’s requirements. As we discussed in the Fall 2008 issue of Golan & Christie’s newsletter, the ADAAA was a significant change from the ADA in two major respects: 1) in order to determine whether a person’s impairment qualifies as a disability, an inquiry must be made without regard to any “mitigating measures” that the person takes to correct their impairment. For example, a person with a seizure disorder who is able to control his condition with the help of medication may still be considered disabled if he would meet the test for disability without medication; and 2) where a person brings a claim based on being “regarded as” disabled and some prohibited action was taken against him as a result, it will not be a defense to say that the actual or perceived impairment does not qualify as a disability.

Among other things, the new regulations provide a list of impairments that will have a strong presumption of qualifying as a disability and will usually bring an employee with one of these impairments under the protections of the ADA. The list of impairments includes: deafness, blindness, intellectual disabilities and autism, partially or completely missing limbs, mobility limitations which require use of a wheelchair, cancer, diabetes, HIV, multiple sclerosis, muscular dystrophy, cerebral palsy and epilepsy. If you have an employee who notifies you of one of these conditions, be sure that you are prepared and know how to respond appropriately.

To discuss these or other employment laws, contact Laura A. Balson or Margaret A. Gisch.