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Smarter Growth Matters

Vol. 1, No. 6
October, 2017

Make Your (Disparaging and Offensive) Mark

SCOTUS recently (June 19, 2017) opined on the intersection of the First Amendment and the Lanham (Trademark) Act.  In Matal v. Tam, 582 U.S. ___ (2017), the Court held that the Lanham Act provision prohibiting the registration of trademarks that may “disparage … or bring … into contemp[t] or disrepute” any “persons, living or dead” (the disparagement clause) was unconstitutional under the Free Speech Clause of the First Amendment.

On November 14, 2011, Simon Tam filed a trademark application for THE SLANTS citing the services “entertainment in the nature of live performances by a musical band.” The U.S. Patent and Trademark Office denied registration of the application citing 15 U.S.C. § 1052(a).  After following the administrative appeal process, Tam took the case through the federal courts until SCOTUS granted cert.

In its attempt to uphold the disparagement clause, the Government advanced three central arguments: (1) trademarks are government speech (generally not regulated by the Free Speech Clause), (2) trademarks are a form of Government subsidy, and (3) the disparagement clause should be reviewed under a new “government-program” doctrine.

New Europe-U.S. Privacy Shield Framework Could Affect Your International Business

In 2016, the International Trade Administration, under the U.S. Department of Commerce, and the European Commission together designed a framework to provide companies on both sides of the Atlantic with a mechanism to comply with European Union data protection requirements when transferring electronic personal data from the E.U. to the U.S. for the purpose of international commerce. Switzerland and the U.S. enabled the framework in 2017.  Personal data ranges from health care information to financial and family information.

This framework, known as the Privacy Shield Framework, is a set of robust and enforceable protections for the personal data of E.U. individuals.  The Privacy Shield Framework dictates how participating companies can use E.U. personal data under robust U.S. and E.U. data protection oversight.  Further, the Framework offers E.U. persons access to multiple means to address individual concerns regarding the use of individual personal data, including free dispute resolution, making it easier for individuals to exercise their rights to protection. The Framework also covers the transfer of personal data from a Framework participant to a third party.

Why can the Privacy Shield Framework be important to your company? If you are engaged in transatlantic commerce, and if you handle personal data of an individual or individuals from E.U. countries, then you need to understand the potential impact of the Privacy Shield on your commercial transatlantic activities.  To join the Privacy Shield Framework, a U.S.-based company will self-certify to the U.S. Department of Commerce and publicly commit that it meets the Framework’s requirements. This public commitment to comply with the Framework’s requirements will then become enforceable under U.S. law.

While a U.S. company’s commitment to conform to the Privacy Shield Framework is voluntary, there are 7 Basic and 16 Supplemental Principles which are enforceable once a company joins.

The 7 Basic Principles are:

  • Notice of an organization’s participation in the Privacy Shield Framework is in “clear and conspicuous language;”
  • The choice to “opt out” of disclosures to third parties is given to the individual who supplies the personal data.  Also, in the case of health care information, the individual must affirmatively consent to an organization’s use of this information;
  • There must be a mechanism for accountability for onward transfers of personal data in an organization’s contracts with third parties;
  • Reasonable measures must be taken to prevent data loss, misuse, or unauthorized access;
  • Personal information must be limited to information that is relevant to the purpose of processing;
  • Individuals must have access to their personal information held by an organization, to be able to correct or amend it;
  • Robust mechanisms must be in place for recourse, enforcement, and liability matters.

The 16 Supplemental Principles address the following topics:

  • Sensitive data handling;
  • Journalistic exceptions;
  • No secondary liability for pass-through of data (e.g., internet service providers);
  • Due diligence and audits;
  • Data protection authorities;
  • Access;
  • Self-certification of organizations;
  • Verification of data;
  • Human resources data;
  • Third party contracts and onward data transfers;
  • Dispute resolution and enforcement;
  • Choice of the individual information supplier;
  • Travel information, such as “Frequent Flyer” data;
  • PharmacE.U.tical and medical information;
  • Public records;
  • Access requests by the public at large.

Supplemental Principle 14 will be applicable to our clients who work internationally and handle individual health care data as it relates to pharmaceutical and medical information. In particular:

  • E.U. Member State law applies to the collection of personal data BEFORE such data is transferred to the U.S.  Once transferred, Privacy Shield Principles apply.  Personal E.U. data used in pharmaceutical research must be anonymized;
  • If data is to be used for future scientific research, an appropriate notice and choice to “opt-out” must be provided to the individual owner of the data, especially for unanticipated research activities.  A new consent is required if the future use of the data is inconsistent with the original purpose for its collection;
  • If an individual withdraws from a clinical trial, data collected before withdrawal can be used if the individual had notice at the time of commencement of the clinical trial;
  • Privacy Shield Principles do not apply if an organization provides personal data from a clinical trial conducted in the E.U. to any U.S. agency for regulatory or supervision purposes.
  • Privacy Shield Principles are not applicable in product safety and efficacy monitoring activities, including the reporting of adverse events.
  • A transfer of encoded or encrypted data from the E.U./Switzerland does not constitute a transfer of personal data.

Your organization should consider joining the Privacy Shield Framework List if it does significant business in the E.U. or Switzerland which involves handling the personal data of European individuals. A benefit of joining is that all self-certifying participating organizations are deemed to provide adequate protection for data collections and transfers, which can be expedited. Second, the E.U. States’ and Switzerland’s requirements for data transfer are either waived or automatically granted.  Third, once your organization’s compliance requirements are established, costs are contained and predictable from year-to-year. More information, including application information, can be found at https://www.privacyshield.gov. or feel free to reach out to us for further guidance.

Startup Tidbit:

Who invented the ice cream cone?

Italo Marchino, an Italian immigrant, produced the first ice cream cone in 1896 and was granted a patent in December of 1903. Although Marchino is credited with the invention of the ice cream cone, a similar idea was introduced at the St. Louis World’s Fair in 1904. One very hot day, Charles Menches was selling ice cream in dishes, but there was such a demand for ice cream that he ran out of saucers before noon. After some quick thinking, Menches turned to his friend Ernest Hamwi for help. Hamwi was selling a Middle Eastern confection called Zalabia, which consists of a wafer-like pastry sold with syrup. Menches rolled the Zalabia and scooped ice cream on top.

The Massachusetts Pregnant Workers Fairness Act:

What Employers Need to Know.

On July 27, 2017, Massachusetts signed the Massachusetts Pregnant Workers Fairness Act into law.  The law goes into effect on April 1, 2018 but notice to workers should start on January 1, 2018.  Federal and state law already prohibit discrimination against pregnant or nursing workers and require accommodations for any pregnant worker with a disability    The new law, which amends M.G.L. c. 151B, addresses this aims to fix this by requiring if requested, a reasonable accommodation for pregnancy or pregnancy related conditions.,.  Additionally, the new law clarifies and fills in gaps in what is considered an adequate break and lactation space.  There are a few key points that all employers should be aware as the new law is implemented.

1. Make sure you provide reasonable accommodations to all pregnant employees.

The new law requires Massachusetts employers of 6 or more to provide reasonable accommodations to pregnant and nursing employees.  An employer may not require a pregnant or nursing employee to take a leave of absence if another accommodation is possible.  And an employer may not subject an employee who requests an accommodation to adverse employment consequences or a denial of opportunities.

The law clarifies that what constitutes a reasonable accommodation includes making a reasonable accommodation for a nursing employee who needs to express breast milk, such as providing a private, lockable, non-shared, non-bathroom space for expressing breast milk.  For this, as well as other minor adjustments, such as more frequent bathroom breaks, food, or water breaks, seating, and limits on lifting objects over 20 pounds, no medical documentation is required.

For other accommodations, medical documentation from a variety of appropriate healthcare or rehabilitation professional can be requested.  These accommodations include: (1) requests for time off due to a pregnancy complication or to recover from childbirth; (2) acquiring or modifying equipment; (3) temporary transfers to less strenuous positions; (3) job restructuring, including modification to work schedules; (4) assistance with manual labor; and (5) requests for light duty.  An employer cannot force a pregnant or nursing employee to take an accommodation if they do not want or need it.

2. Reasonable accommodation requests can only be denied if they create an undue hardship.

When a pregnant employee requests a reasonable accommodation, that request can only be denied if granting it would create an undue hardship for an employer.  To determine whether a request creates an undue hardship an employer needs to look at the difficulty and expense in granting the request.  Factors to consider include: (1) the nature and cost of the accommodation; (2) the overall financial resources of the employer: (3) the number of employees and the number, type, and location of facilities; and (4) the impact on expenses and resources to the employer’s program, enterprise or business.

3. Employers must provide notice to employees of the new law.

Employers must provide their employees with written notice of the right to be free from pregnancy related discrimination, including lactation, and the right to a reasonable accommodation.  Specifically, notice must be provided to any pregnant or nursing employee with 10 days of their notification to the employer of their status or need.  All current employees must be notified by April 1, 2018.  And all new employees must be notified after April 1, 2018.  Notice can be provided directly to the employee in a handbook, pamphlet, or by other written means as early as January 1, 2018.

4. Steps to take before the law becomes effective.

There are a number of key steps that any employer should take before the new law’s April 1, 2018 effective date.  First, employers should review and modify their policies to make it clear that this new category of employee is entitled to reasonable accommodations.  Second, employers should adopt a notification plan.  Finally, all mangers should be trained on the new law to ensure compliance.  Contact any one of the lawyers in our firm to assist your business on its compliance.

Client Highlight

Located in downtown Biddeford, Biscuits & Company serves outrageous biscuit sandwiches and baked goods made with Maine Grown Grains and locally sourced ingredients.

Proprietor Stacy Cooper grew up in Canada where biscuits were a big part of her young life. After relocating to Arundel, Maine, from Boston, Cooper realized her dream of opening a restaurant where she could experiment with biscuit classics made of “flour, fat and buttermilk” to sweet and savory scones. Cooper adds local preserves and produce to customers’ delight. Cooper pitched for and won the Heart of Biddeford’s Main Street Challenge in 2014, an economic development incentive business plan contest, and was able to fill a vacant storefront with her dream. Biscuits & Company has quickly become a local favorite in a re-awakening downtown.

FGD Briefs

FGD Law actively supports quality of life endeavors within the communities our colleagues live and work. The annual Biddeford-Saco ArtWalk is a favorite of all our team.  The downtown group ‘Heart of Biddeford’ and other volunteers have grown it into an ongoing monthly event – taking place on the last Friday of each month, from April to October.   For the months of August-October we have enjoyed featuring local artist, Kenny Deprez.

Kenny Deprez, a South Portland native, is back in Southern Maine after living in Philadelphia for the past decade.  He received his MFA from the Maine College of Art in 2004, and he has exhibited regionally since 2000.  He recently showed work at Engine, while prior exhibitions include the 2003 Portland Museum of Art Biennial, the Islip Art Museum’s Carriage House Projects 2006, and the 2010 Center for Maine Contemporary Art Biennial. In Philadelphia he served on the Board of Directors for the Philadelphia Sketch Club, and as adjunct professor at Moore College of Art and Design. Through painting and photography, Deprez explores the space between abstraction and the everyday.

Interview with Karin Gregory

Q.  How long have you been practicing law?

A. Since 1988……30 Years next year! Wow! I initially received a Bachelors Degree in Biology & Chemistry with a Minor in Psychology. I went on to get my Masters in Public Health. I stated working in healthcare when someone told me that working in law and healthcare is a great path so I combined my passion for basic science and research with Law and Healthcare and went to law school at the UNH School of Law, formally known as Franklin Pierce Law Center in Concord, NH

Q.  What is the area in which you are most interested?

A. I am mostly interested in Life Sciences Corporate Law.  I enjoy being part time General Counsel for Life Sciences clients.  I understand the areas of their business and contribute to their growth and success.

Q.  What makes a smaller boutique firm different from a larger firm?

A. Well, I have an entrepreneur spirit which doesn’t lend itself to a large firm. Here we are able to give more individual client focus, a quicker response time and personal attention. I feel clients need lawyers who are well rounded in business, finance and advising. We are a widely specialized firm that is not afraid to go after cutting edge legal issues and help educate our clients.

Q.  What do you do for fun and relaxation?

A. I love to exercise by swimming in the pool and  in the ocean, participating in a morning boot camp on the beach as well as golfing. I also love to garden, knit and make jewelry. My most favorite thing to do is spend time with our 2 ½ year old granddaughter, Emma and her brand new little sister, Zoey.

On September 7th, Furman Gregory Deptula hosted a Business After Hours for the Biddeford Saco Chamber of Commerce. It was a great opportunity to visit and network with local businesses. The event was catered by Biscuits & Company who supplied us with a wonderful spread. It was a terrific night!