Departing from your organization without an agreement as to ownership of intellectual property could mean leaving your property behind. In a decision by U.S. Court of Appeals for the Federal Circuit, the court determined that an originator of a service mark may not own the mark upon her departure from the organization she helped found.

In Lyons v. Am. College of Veterinary Sports Med. & Rehab., the Federal Circuit heard a dispute over the ownership of a service mark between Lyons, the originator of the mark, and The American College of Veterinary Sports Medicine & Rehabilitation (the “College”), the organization she helped create. Lyons was an equine veterinarian with plans to form an accredited veterinary specialist organization (“VSO”) for treating athletic animals under the mark “The American College of Veterinary Sports Medicine & Rehabilitation” (the “mark”). Starting in 1999, Lyons approached 5 other veterinarians (the “Committee”) with the idea of forming the VSO under the mark. In 2002, the Committee began using the mark as the name of the intended VSO, and in 2004, the Committee started drafting their letter of intent to gain accreditation from the American Veterinary Medical Association (“AVMA”) for their VSO.

Letter of Intent

While drafting their letter of intent, the Committee dismissed Lyons from the organizations for reasons not relevant to the dispute. At the time, the parties did not discuss or conclusively determine the true owner of the mark.

After her dismissal, Lyons successfully registered the mark in the Supplemental Register based on her first use of the mark in a publication called The Equine Excellence Initiative back in 1995. Meanwhile, the Committee completed their letter of intent and VSO petition for accreditation and submitted their first draft in November 2008. In June 2011, the AVMA granted the College provisional recognition as a VSO and permitted it to administer certification tests, offer educational programs, and establish active residency programs at veterinary colleges. This is when the College sought to cancel Lyons’s registration of the mark on grounds of priority of use and likelihood of confusion.

After the district court and the Trademark Trial and Appeal Board (the “Board”) decided the matter in favor of the College, Lyons appealed to the Federal Circuit. In its decision, the Federal Circuit determined that ownership of the mark came down to three factors: 1) what was the parties’ objective intent or expectations regarding ownership of the mark; 2) who does the public associate with the mark; and 3) to whom does the public look to stand behind the quality of goods or services offered under the mark. On each of the elements, the Court found in favor of the College.

As to the first element, the Court found that the parties objectively believed and expected that the Committee would inevitably form the VSO which would utilize the mark, not that Lyons would offer personal veterinary services under the own. The Court noted that Lyons never communicated to any other Committee member regarding her belief that she owned the mark, made any prior use of the mark, or her objection to the Committee naming the College after the mark.

Regarding the second element, the Court found that the public associates the mark with the College, rather than with Lyons, and looks to the College for services in connection with the mark. By the time of the appeal, the College already certified at least 115 vets, established 13 active residency programs, and conducted conferences and continuing education programs utilizing the mark. The College also published a well-subscribed and read journal for the industry, obtained corporate sponsorships from companies in the veterinary industry, and is recognized by the press for its status in the industry. The Court found this track record to be sufficient evidence of the public’s association of the mark with the College.

Lastly, as to the last element, the Court held that the public looks to the College to stand behind the quality of the services associated with the mark. The College’s website offered the public veterinary services and information regarding all AVMA-recognized organizations and specialists. Also, the veterinarians certified by the College look to it for their accreditation and re-education. On the other hand, the Court noted that Lyons could not show that she obtained similar certifications, offered students educational services under the mark, or offers any certification program.

Upon finding the elements in favor of the College, the Court held that the mark was owned by the College and ordered the Board to cancel Lyons’s registration over the mark in the Supplemental Registration. As a result, Lyons, the founding member of the College and the originator of the mark, lost ownership of the mark.

The significance of this case is not only its final determination but the applicability of its decision to the overall scope of ownership disputes. No longer can we believe that the individual who discovers a name or thinks it up is its true owner. In fact the opposite is true. As the Court in the Lyons decision held, the relevant inquiry is who the public perceives as offering the product or service, not the identity of the creator. Founding members should be mindful of this decision and their actions at the time of founding the mark, forming their entity, and departing from such entity. Lastly, and ideally, to avoid these disputes, founders and their co-members are best advised to contract around the ownership of their marks and determine their true owners at the conception of their relationships together.

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The City of Leeds announced that the Texas based mega-travel center Buc-ee’s will open its second store in the State of Alabama in the City of Leeds.

Leeds Mayor David Miller characterized the selection of Leeds as the next Buc-ee’s site as a game changing win for the City.

“We have worked toward this end for the past several years and being able to finally say “It’s here” is most gratifying,” says Miller.

“We chose this location because it is between two major metropolitan areas, it has good visibility, and a community we will be able to work with,” said Buc-ee’s owner Arch “Beaver” Aplin III, whose nickname “Beaver” is the logo for the company.

“We appreciate being brought into the Leeds community and family.”

Buc-ee’s will have more than 100 gas pumps, 54,000 sq. ft. retail store, over 200 employees and numerous restrooms. According to Aplin, they will begin hiring for the 200 full-time positions approximately three months prior to their opening, which is scheduled to be in Fall 2020.

Buc-ee’s boasts a unique selection of travel related and outdoor merchandise as well as a huge variety of food and snack items. They are especially not a truck stop and do not even allow big trucks on the property.

“Our philosophy is to run an incredible facility and exceed customer’s expectations,” Aplin said. “I think people traveling and people in the community will approve.”

Mayor Miller added, “in addition to all the superlatives about the store itself, we found that the Buc-ee’s ownership and staff were delightful, down-to-earth folks to work with as we forged our agreement. Adding Buc-ee’s to the list of premier sites such as Barber’s Motorsports, Bass Pro Shops, The Shops of Grand River and the soon to come Southern Museum of Flight at the I-20, 140 exit makes this a true Alabama and regional destination. We welcome Buc-ee’s to the stellar line-up of attractions around the City of Valor.”

The Dallas jurors determined that the metal-on-metal implants were defective in design and that the manufacturers failed to warn consumers about the dangers of their product.  The $1.041 billion verdict includes 32 million in actual damages and the rest in punitive damages.

Johnson & Johnson, who is currently facing more than 8,000 hip implant lawsuits, stated it plans to appeal the verdict, and they are denying any wrongdoing in the manufacturing and marketing of the Pinnacle hip implants.

The California plaintiffs, who were implanted with the Pinnacle hip devices, suffered erosion of the bone, tissue death and additional injuries which have all been tied to the faulty hip device design.

Pinnacle implants were created with metal sockets instead of safer materials. The metal-on-metal can cause the socket to make contact with the ball head, leading to corrosion, bone and tissue erosion.

This is the third test case to go to trial after nearly 8,400 lawsuits were consolidated in a Texas federal court. The test cases will help determine the value of all remaining claims.

The second Pinnacle hip implant case produced a $500 million verdict, and in the first case in 2014, Johnson & Johnson and DePuy were both cleared of any liability.

DePuy did stop selling the defective device in 2013 after the U.S. Food and Drug Administration strengthened its regulations for artificial hip replacements. That same year, the companies settled more than 7,000 lawsuits against their ASR metal-on-metal hip implant for $2.5 billion.

This recent Pinnacle hip implant verdict delivers a clear message to companies that defective products will not be tolerated and that Johnson & Johnson must make changes to its products to ensure safety.

If you were injured by a Pinnacle hip implant, contact the class action attorneys at Brunson, Barnett and Sherrer, PC for a FREE Case Evaluation to determine if you are entitled to compensation.

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In a recent survey by the AAA Foundation for Traffic Safety, which focused on driving habits, 34.7 percent of drivers reported reading a text or email messages while driving, and 25.8 percent of drivers reported typing or sending text or email messages while driving.  Additionally, 67.1 percent of drivers reported talking on a cell phone (of any kind, including while using a wireless connection and speaker phone) while driving.  This data shows that many drivers continue to engage in visual and manual distraction activities with their portable devices while driving.  This is concerning because research by NHTSA and others suggests that visual and manual manipulation of devices while driving dramatically increases crash risk. Last month, the National Highway Traffic Safety Administration (NHTSA) released guidelines encouraging portable and aftermarket device manufacturers to produce products that help prevent distracted driving.

This is the second phase of the NHTSA’s voluntary guidelines aimed at addressing the growing issue of driver distraction on roadways throughout the U.S. The first phase focused on devices built into vehicles during the manufacturing process.

Manufacturers are encouraged to incorporate features into their devices that reduce driver distraction. The NHTSA recommends features such as a simplified Driver Mode and pairing capabilities, which link the device to onboard infotainment systems, to help keep drivers focused on task of driving.

Each day distracted driving kills eight people and injures another 1,161. The NHTSA hopes that by working directly with device manufactures, it can help cut distractions available to drivers who are reluctant to put down their devices.

In addition to using simplified, non-distracting devices, the NHTSA says drivers can reduce distraction by:

• Putting away cellphones when driving
• Programing GPS systems with intended destinations before starting out on your route
• Never Facetime, Snapchat or create videos while driving
• Never take selfies or pictures while driving
• Always wearing a seatbelt

The NHTSA also suggests that passengers can help reduce driver distraction by offering to send a text or make a call for the driver so he or she is not distracted and dedicating their full attention to safe driving.

Distracted driving is a serious threat to all drivers and can lead to devastating injuries and even death. The car crash lawyers at Brunson, Barnett and Sherrer, PC can help you fight for the justice and the compensation you deserve if you have been injured or lost a loved one because of a distracted driver.

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This decision means that, finally, retired NFL players will receive much-needed care and support for the serious neurocognitive injuries they are facing.  The National Football League estimates that as many as 6,000 former players could develop Alzheimer’s disease, dementia, and other conditions related to head trauma. The average payout is expected to be around $190,000 per player, but payments could be as high as $5 million for those with Lou Gehrig’s disease.

The decision ends a long fight between the league and former players over claims that repeated head injuries while playing in the NFL caused players to suffer from neurocognitive injuries.

“We will make sure that every single eligible retired player takes advantage of this settlement’s benefits,” Seeger said in a conference call with reporters, according to the Associated Press. “We will be undertaking a massive education effort to ensure that all former NFL players know about the settlement’s benefits and understand how to file a claim.”

Challenge to NFL Concussion Settlements Get Rejected

The settlement was initially approved in June 2015 by a judge, but a small group of players challenged the agreement, arguing that it did not cover future cases of chronic traumatic encephalopathy (CTE) or include help for those suffering from depression, aggression, and other mood disorders.

The two petitions, including one filed by the family of late Buffalo Bills fullback Cookie Gilchrist and one filed by a group of 31 players, contend that the settlement didn’t account for scientific innovation that would allow CTE to be identified in people who were living. Players who suffered injuries after Judge Anita B. Brody of the United States District Court approved the settlement in 2015 are also not covered.

Not only did the United States Court of Appeals for the Third Circuit reject those arguments but the Supreme Court’s refusal to review the case effectively ends the challenge to the settlement. Lawyers representing the dissenting players can still ask the Supreme Court to reconsider its decision, but a reexamination is rare.

“We are pleased that the Supreme Court has decided not to review the unanimous and well-reasoned decisions of Judge Brody and the Third Circuit approving the settlement of this litigation,” the league said in a statement, according to the New York Times. “We look forward to working with class counsel and Judge Brody to implement the settlement and provide the important benefits that our retired players and their families have been waiting to receive.”

By making an agreement, the league avoided having to disclose what it knew about the effect repeated concussions had on its players in a trial. Instead, the NFL admitted no fault under the concussion settlement.

NFL Concussion Settlement Payments Could Come Within Months

Players who have already been diagnosed with dementia and other serious neurocognitive injuries could begin receiving payments in 90 to 120 days.

“Today’s decision ushers in the benefits process, which we expect will open this spring,” said Seeger. “With a 99% participation rate in the settlement, and more than 11,000 retired players already pre-registering for benefits, it is clear these programs are highly anticipated by the NFL alumni community.”

In January, the league will start making monthly deposits of $20 million into a special account set aside for players. Lawyers for the plaintiffs must also set up a way for former players to begin filing claims. Players with prior diagnoses can expect checks within weeks of submitting their paperwork.

Had the case gone to trial, it might have taken years for the players and families to get medical testing and financial rewards, said the lawyers for the players. In the ruling that affirmed the settlement, Judge Thomas L. Ambro of the United States Court of Appeals for the Third Circuit agreed.

“Compensation for players who are coping with these symptoms now is surely preferable to waiting until they die to pay their estates for a CTE diagnosis,” the judge wrote.

The woman was diagnosed with ovarian cancer in 2012, following her extended use of talcum powder, the main ingredient in Johnson & Johnson’s Baby Powder. The lawsuit stated Johnson & Johnson acted negligently in its failure to warn consumers that using its talc based products for feminine hygiene could raise ovarian cancer risks.

The October verdict is the third to be handed down by St. Louis juries in 2016. Two talcum powder cases tried earlier this year resulted in verdicts of $72 million and $55 million.

While Johnson & Johnson has expressed its sympathies for the woman’s diagnosis, they plan to appeal the verdict, and they continue to claim their products are safe and do not cause ovarian cancer.

To date, research has failed to support a direct correlation between talcum based powder use and an ovarian cancer diagnosis, however, studies dating back to the 1970s have linked talcum powder use to increased risks of ovarian cancer.

During the latest trial, attorneys cited research to support the dangers associated with talcum based powder use and women regularly applying talc to their genital area faced ovarian cancer risks 40 percent higher than those who do not use talcum powder based products.

Additionally, attorneys in this case also alleged that Johnson & Johnson specifically marketed talcum powder products to groups of women most at-risk for developing ovarian cancer.

Have you or a loved one been diagnosed with ovarian cancer after regular user of talcum powder products? You may be entitled to compensation for your medical bills, lost wages, and pain and suffering. Contact the class action lawyers at Brunson, Barnett & Sherrer, PC to find out if you have a case.

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Everyone Needs a Last Will and Testament

Although that sounds like an easy answer, most people have failed to go to their local lawyer to get the documents created that protect their family and that protect their assets when sickness or tragedy hits. People just don’t expect tragedy to hit heir family, and, when it does come, people have failed to put in place the basic documents that protect assets and that keep the patient or the family in control of decisions being made. People are more likely to sign up for satellite TV service than to discuss a Will with a local lawyer, and the TV bill is likely much more expensive over the course of just a few months.

Everyone needs a will. It’s true that I have advised a few people that the family may end up not using the Will if all of the person’s belongings have legally been transferred, but that works in only a few cases. That situation takes careful planning up front, and it still needs the detailed advice of a lawyer to be successful. Not many families can pull it off, and their are still several other documents that must be considered other than just the Will.

What the heck is a Healthcare Proxy? This form, or set of forms, is an absolute must! It will come. There will be a time when we just cannot make a decision due to illness or medication. If we have done the right thing, then we have named someone to speak for us during those times of sicknesses. It’s not just a Living Will. A Healthcare Proxy is a form that you create now that names a person to help make all healthcare decisions for you when aren’t able. Without such a form, who has the last word about what you want; the hospital? Yeah, I am sure that the hospital really knows my wishes during a tragedy or illness. No matter who you name, they must follow the wishes that you have made in advance. You can actually control the decisions being made about your own health.

Why should you consider a Power of Attorney as part of your plan? There are many situations that need a POA, but, when sickness or tragedy hit, life can be much easier for you and your family if someone is named in advance to make decisions when you cannot do so. The POA is a document that allows someone to step into your shoes and to make different types decisions for you. These decisions can be related to much more than just health issues. This document can give a person either very limited authority or very broad authority. In those situations, they are acting as you. This grant of authority can be a blessing when you need the help, but caution should be taken to protect against abuse of that power. It happens in the most unlikely situations.

Is a Trust Agreement only for the rich? Absolutely not. Although the ins and the outs of Trust Agreements will be a topic for another day, Trusts can be created prior to or after death, and many different things can be placed in a Trust. Trusts have many uses, but they can allow property to be controlled and given away over time and based on the rules that you put in place now. What better way to remain in control of your property when you’re gone or to even take advantage of certain tax benefits?

A Will, a Healthcare Proxy, a Living Will, a POA, or a Trust are very serious documents that should be taken care of now as part of your estate plan! You may not need them all, but get the advice now for both your sake and the sake of the people that you may leave behind or in control. Whatever you do, go sit down with a local lawyer and don’t rely on the Internet to create these important forms for you! You and your family will be happy that you made the trip.

There is no legal advice intended in this article, and the accuracy of the information is not guaranteed. The information presented in this article may not reflect the most current legal developments, and a lawyer should be consulted prior to your reliance on the information provided.

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How very confusing that the need and the viability for a variance varies based upon your various situation and the very jurisdiction of where your property is very uniquely situated.  It may be worth a try, but don’t get your hopes up.

You’ll need a variance if you wish to do something that is slightly different than the regulations allow. You’ll have to write a request to the city or to the county in which you live, and that request will need to be submitted to the board or commission that makes decisions about such requests. That board or commission will review your request for authorization, and you will be able to show up in person in order to convince them to grant your request. Your fate regarding your request lies completely in their hands, unless of course you would like to appeal it to a higher court.

Suppose that you wanted to build a porch on the back of your home, but doing so would require you to get too close to the property line and violate the local regulations. On another note, suppose that you would like to close in a portion of your garage and open that tattoo parlor that you’ve always wanted? In that situation, you would run the risk of violating a local ordinance controlling land uses in residential areas. In both of those scenarios, one would have to petition the local board or commission to ask for special permission for a variance to the regulations which would ordinarily deny those activities to occur without this special approval.

Don’t be alarmed, however, if you are denied your request. Variances are not often allowed by most jurisdictions, and they are certainly not guaranteed. In most circumstances, the standard for the variance to be granted is based on an extreme hardship. Is it considered to be an extreme hardship to request that the new addition to your home be allowed to stay even though you built it too close to your neighbor’s house without going through the local approval process? You’ll likely get a big denial on that one, because financial reasons alone are not considered to be good enough reason on which to base a variance. In that situation, permission is better than forgiveness.

The approval of a variance is Not a legal right. Variances can be, however, a successful tool in limited situations. Don’t expect a successful request for a variance if you show to explain that your only hardship is that you will lose money if the variance is not granted. Your situation must be extreme. That standard is in place to protect the community and all of the people who live there. Let’s face it; if everyone were granted a variance then the laws and regulations would be much less effective. Variances are the exception and not the rule.

There is no legal advice intended in this article, and the accuracy of the information is not guaranteed. The information presented in this article may not reflect the most current legal developments, and a lawyer should be consulted prior to your reliance on the information provided.

That public corporation can do most of the things a private corporation can do, but the RDA legal authority and tax exempt status is legally limited to a certain downtown district within the city. That legal authority, however, is quite strong when it comes to helping a struggling downtown area improve its look and to recruit business and activity.

The primary purpose in having a Redevelopment Authority is to assist both the City and its citizens in redeveloping a downtown area into a strong vibrant business community that benefits the lives of the citizens in a relevant way. The methods that a RDA can use to assist are many, and either an established business or a start-up business can take advantage of such tools. The RDA law provides one of the very few ways that a City can provide a direct benefit to a private company. It’s basically a public-private partnership to improve the downtown area, tax dollars are actually put directly back into a community, and everyone wins.

Every Alabama resident should determine if their home town has a RDA. If not, maybe it’s worthy of creating; if so, attend the monthly meetings. In this lawyer’s option, the RDA is one of the best moves by a City Council with a struggling downtown area. Through this entity, government is actually empowered to provide real assistance to the people and their community, and the local economy will benefit as a result.