Thursday, March 3, 2016

The House That Social Media Built

As anyone who has built or renovated a house knows, lot of decision-making goes into giving a home a proper makeover.  House flipper Mike Riccio and realtor Nicole White recently embarked on a social media-fueled renovation project. 

The house they've chosen is a Dutch colonial located in Old Saybrook, Connecticut. Instead of choosing cabinet types, paint colors, trim finishes, appliances and other details on their own, White and Riccio have been putting it to a vote on Facebook. Interested participants have 48 hours to vote for their favorite choice.

White and Riccio have so far garnered hundreds of votes on various renovation options. In videos posted after the voting period ends, they announce the winning choice.  Comments on Facebook have been overwhelmingly full of support and excitement.

Nicole White noted that most home consumers at least start their search online, and Riccio romantically described the project as one that builds community, because everyone gets the opportunity to be part of the design process.  Ideally someone who participates in voting on the design will end up as the proud new owner of the House That Social Media Built. 

The process should take about twelve weeks and is still going on. You can view before and after pictures of the house and vote on future design options by visiting the The House that Social Media Built Facebook page.

Thursday, February 11, 2016

What are my rights if I’ve been injured on the job?

The Connecticut Workers’ Compensation Act provides benefits for workers injured  in the course of their employment.  Under the Act, a number of benefits exist for the injured employees.  Such benefits include compensation for periods of time an employee cannot work, compensation for  a permanent disability or limitation from the injury, payment of medical bills, future related medical expenses, as well as a job retraining program for employees whose injury prevent them from returning to the kind of work they used to do. 

Workers’ Compensation covers nearly all employees, including minors, non-citizens, and part-time employees.  In some cases, injured workers may be eligible for Worker’ Compensation benefits even when they sustained an injury outside of the workplace, such as when while traveling for work or working remotely.. Additionally, the State of Connecticut has a no-fault system of Workers’ Compensation, meaning an employee may receive benefits for his or her injuries even if the accident was the employee’s own fault.

While the employer is responsible for providing the initial medical treatment, usually through an occupational health provider, the employee has the right to choose his or her own treatment providers after the initial visit with the employer designated medical practitioner.  However, if the employer participates in an approved medical care plan, the employee must choose a physician from the list of doctors included in that plan.

Often a workers’ compensation insurer is required to issue a Voluntary Agreement, essentially accepting liability for the employee’s claim and defining important aspects of the same, such as the employee’s compensation rate under the Act.   The employee has the right to not accept a Voluntary Agreement, which is especially important if the employee believes it contains an error, such as a miscalculation in the rate of compensation.

Most importantly, the workers’ compensation regime in Connecticut includes a Commission, where employees can force the insurer to provide them with the benefits and compensation they are entitled to under the act.  As an injured employee, it it is crucially important that you have a devoted and experienced attorney to advocate for their rights before the Workers’ Compensation Commission to ensure that you receive the justice and compensation you deserve.

More detailed information, including answers to frequently asked questions regarding workers’ compensation, can be found on the Brown, Paindiris & Scott website.

If you have any questions about this or any other workers’ compensation matter, contact the workers’ compensation attorneys at Brown, Paindiris & Scott at 860-659-0700 or cguarnieri@bpslawyers.com.  

Friday, February 5, 2016

The NFL’s Super Monopoly over the Super Bowl

The NFL obtained federal trademark protection for the mark “SUPER BOWL” on December 9, 1969. This registration secured a virtual monopoly for the NFL, granting it the exclusive right to use the mark “SUPER BOWL” in connection with football exhibitions. Individuals and businesses alike are therefore prohibition from using “SUPER BOWL” in any way which could be construed as an endorsement by or affiliation with the NFL.
  In 2008, the NFL made headlines when it sent a letter to the Fall Creek Baptist Church in Indianapolis demanding the church cease and desist from advertising its “Super Bowl Bash.” The result was that groups hosting parties for the “Big Game” have had to turn to more creative means of advertising, without using the term SUPER BOWL.

Stephen Colbert poked fun at the NFL’s aggressive protection of its trademark prior to the 2014 Super Bowl, jesting that he would get around having to use their trademark on “Super Bowl” by instead providing coverage of the “Superb Owl.”

So why is the NFL so adamant about enforcing its exclusive rights to its trademark on “SUPER BOWL?” There are two central reasons, but they both come down to money. The first is that the NFL must protect its trademark from dilution. There are two types of dilution described in the Trademark Dilution Revision Act of 2006: Dilution by Blurring, which occurs when the distinctiveness of the famous mark is impaired; and Dilution by Tarnishment, which is where harm is done to reputation of the famous mark. For a trademark owner, either form can spell disaster. The NFL depends on revenue it receives from advertisers that battle over who will be the official sponsor of the Super Bowl. If the reputation of the Super Bowl were diminished, so would the demand to have one’s brand advertised in conjunction with it.

The second reason is that it needs to remain the exclusive rights holder in order to keep its monopoly on the advertising revenue over all things Super Bowl. When a trademark owner allows others to freely use their trademark, it can lose its significance as a mark, no longer holding any meaning as a source indicator. This is known as abandonment or “genericide” (
15 U.S.C. § 1125). For example, the Bayer pharmaceutical company formerly held a trademark on the name “ASPIRIN” to refer to its drug, acetylsalicylic acid. But over time, the public’s generic use of “ASPIRIN” to refer to the drug caused the mark to be declared abandoned.

The result is that the NFL has no choice but to strictly enforce its trademark rights because the mark’s value comes from the fact that others can’t use it without permission. If “SUPER BOWL” was used freely by the public, it could ultimately succumb to genericide. 

But giving the NFL exclusive control of the phrase “Super Bowl” creates a problem for those who are simply looking to talk about the sporting event, not advertise or profit from it. This is where an exception to trademark rights known as nominative fair use comes into play.  
Nominative fair use is essentially the idea that using another’s trademark in a way that does not imply sponsorship or endorsement by the trademark holder is acceptable (New Kids on the Block v. News Am. Pub., Inc., 971 F.2d 302, 307 (9th Cir. 1992)). This provides narrow protection for individuals such as newscasters and commentators that want to say “Super Bowl” for the ease of communication rather than to imply a sponsorship or endorsement by the NFL. For example, it would probably be a nominative fair use to announce “the Super Bowl is next Sunday,” but it would probably be infringement to announce “our Super Bowl Extravaganza is next Sunday.” 

This is just one example of how powerful a trademark registration can actually be. The exclusive rights a federal trademark registration grants its owner can be leveraged to produce tremendous profits. A trademark registration can be obtained for words, phrases, symbols, designs, and more. For additional information about trademarks please visit the United States Patent and Trademark Office (UPTO) website. 
While the USPTO is an excellent resource for information regarding trademarks, it is not permitted to provide specific legal advice related to your individual or business needs. The USPTO recommends contacting a private attorney who specializes in intellectual property for assistance with your specific needs.

If you have any questions about this or any other trademark, trade secret, or copyright matter, contact the Intellectual Property attorneys at Brown, Paindiris & Scott at 860-659-0700 or rvongootkin@bpslawyers.com. 

Monday, February 1, 2016

9 Attorneys Honored as Super Lawyers

Brown, Paindiris & Scott is honored to have nine of its attorneys recognized as
Super Lawyers and Rising Stars in 2015. 

Seated (L to R): Kate Haakonsen*, Richard Brown*, John Maxwell*
Standing: Cody Guarnieri**, Regina von Gootkin**, Ronald Scott*, J. Larry Price*, Barry Armata*, Kristina Lenda**
*Chosen to 2015 Super Lawyers **Chosen to 2015 Rising Star

We are a full-service law firm representing individuals and small to mid-sized businesses in the Greater Hartford area for more than 30 years. We pride ourselves on our attention to detail and giving each client the time and respect they deserve.

Thursday, January 28, 2016

Proposed VA Rules to Impact VA Aid and Attendance Benefits

Important changes are coming that will impact Veterans and their families who apply for the Aid and Attendance (AA) pension.  Although the public comment period has expired, it is not yet known when these changes will take effect.  Some of the changes involve significant departures from prior regulations and will require advanced planning before applying for benefits.  If you or a loved one are considering applying, it is best to do so now before these new changes commence.    

One of the proposed changes involves new asset and income limits in order to qualify for AA benefits.  The proposed net worth limits will track that of Medicaid, which is $119,220.00 for 2016.  Both income AND assets will be added together when determining whether an applicant qualifies for benefits.  An important excluded asset is a claimant’s home, provided it is a primary residence in a residential lot not to exceed 2 acres.  If the primary residence is more than 2 acres, unless the additional acreage is not marketable, the additional acreage could cause a claimant to be over assets and disqualify him/her for benefits.  In addition, annuities and trusts are deemed “covered” assets, meaning the value of them can be included in the asset/income calculation to disqualify a veteran or spouse. Likely the most notable change involves the addition of a look back period, similar to Medicaid.  However, the look back for the VA is three years (36 months), versus five years for Medicaid.  If there are improper transfers during that period of time, the VA may impose up to a 10 year penalty period.  Here, like with Medicaid planning, careful attention must be paid to asset transfers within the 36 month look-back period because the VA has proposed a short window to remedy an issue if a penalty is imposed. 
In another proposed regulation that is similar to Medicaid, provided a claimant meets all of the requirements to qualify for AA benefits, the VA has proposed that all pension beneficiaries complete annual Eligibility Verification Reports (EVR) to verify their income.  This means that the VA will monitor recipients of the pension benefit to ensure ongoing qualification

Lastly, the VA has proposed regulations that seek to define covered medical expenses.  To receive reimbursement for custodial care the claimant must require either regular assistance with two or more activities of daily living (ADL’s) or custodial care and assistance because a mental disorder makes it unsafe for the veteran or surviving spouse to be left alone.  ADL’s include bathing, showering, dressing, eating, toileting and transferring.  Payments to facilities will only be paid if the primary reason for the veteran or surviving spouse to be in the facility is to receive health care services or custodial care that the facility provides.  If the care is not for health or custodial care related services, it will not be considered an allowable medical expense.    

The above list is not exhaustive and only highlights some of the proposed changes that the VA intends to implement.  If you are thinking of applying for these benefits or have questions, you should contact an experienced attorney to assist you before these new regulations take effect.

If you have any questions about this or any Aid and Attendance pension matter, contact the attorneys at Brown, Paindiris & Scott at 860-659-0700 or klenda@bpslawyers.com

Tuesday, January 26, 2016

Short Sale Deficiency Forgiveness Extended through 2016

During the subprime mortgage crisis, beginning in 2007, short sales became a common way for homeowners to dispose of their property.  In a short sale, the bank allows you to sell your property for less than what is owed.  The difference between the amount owed and the sale price, also known as the deficiency, would normally be considered taxable income under 26 U.S.C. 61(a)(12).  For example, if a homeowner owes $200,000 on a home, and the bank receives $150,000 from the short sale, the difference of $50,000 would be considered taxable income to the homeowner, because it is money owed to the bank that the homeowner does not have to pay. This creates a large tax burden and is extremely problematic for people who are in the position of needing to short sale their property.

In response, Congress passed the Mortgage Forgiveness Debt Relief Act (MFDRA) in 2007.  The MFDRA amends the IRS code to essentially exclude any short sale deficiency from counting toward an individual’s taxable income.  In other words, that $50,000 owed to the bank that the homeowner does not have to pay will no longer be taxable as income to the homeowner.  There are of course, exceptions, and it generally only applies to the short sale of principal residences where the deficiency is $2 million or less.

The MFDRA originally applied to short sales completed through December 31, 2014.  Pursuant to the Protecting Americans from Tax Hikes Act of 2015 (PATH), it has now been updated to retroactively apply to short sales made in 2015 and to short sales made in 2016.  Further, PATH allows the MFDRA to apply to short sales “subject to an arrangement that is entered into and evidenced in writing before January 1, 2017.”  This means that taxpayers will not be taxed on the discharge of indebtedness related to a short sale completed in 2015 or 2016, or on a short sale agreed to in writing in 2016 but which doesn’t close until 2017.   

If you have any questions about this or any other real estate matter, contact the real estate attorneys at Brown, Paindiris & Scott at 860-659-0700 or rvongootkin@bpslawyers.com.

Mortgage Forgiveness Debt Relief Act of 2007, 110 P.L. 142, 121 Stat. 1803: https://www.congress.gov/110/plaws/publ142/PLAW-110publ142.pdf

Protecting Americans from Tax Hikes Act of 2015, 161 Cong Rec E 1821, Sec. 151: http://docs.house.gov/billsthisweek/20151214/121515.250_xml.pdf