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What Is Secondary Meaning? Can a Survey Help?

The concept of secondary meaning is straightforward in intellectual property matters. A secondary meaning survey typically seeks to assess whether a “significant” or “substantial part” of the customer class associates a trademark or trade dress with a single source.
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What Does the Manual for Complex Litigation Say About Sampling/Opinion Surveys?

§11.493 Sampling/Opinion Surveys Statistical methods can often estimate, to specified levels of accuracy, the characteristics of a “population” or “universe” of events, transactions, attitudes, or opinions by observing those characteristics in a relatively small segment, or sample, of the population.

Intellectual Property Survey? Make Sure You Know the Rules.

The following factors courts often consider when determining the admissibility of a Lanham Act survey, to guide its surveys and reports. Specifically, whether the:

Hiring a Survey Expert Witness? Five Things You Need to Know.

Not all survey expert witnesses are equal. Below are five key questions to ask before signing the letter of agreement. A valid and reliable survey can make all the difference to your case.

How to Best Leverage Your Expert Witness

Experts can help throughout your entire case. Your expert witness can help in many ways, provided they have the right expertise and experience. Experts may be counted on by attorneys throughout the case process: Trial Strategy, Discovery, Depositions, Pre-Trial Preparation, and Trial.

Likelihood of Trademark Confusion Factors by Federal Circuit

Each of the 13 federal courts of appeal have their own test for evaluating whether a likelihood of confusion exists between two trademarks. Although the tests are not identical, most of them are substantially similar and use many of the same factors. And the factors are non-exclusive.

Is a Trademark Infringement Survey Really Necessary?

Is a Trademark Infringement Survey Really Necessary? Yes, according to the John Marshall Review of Intellectual Property Law. "Courts have continually utilized surveys to show evidence of secondary meaning, generieness, dilution, and functionality in trademark litigation." - The John Marshall Review of Intellectual Property Law, Robert Thornberg.

Investment Advice Fiduciary Redefined by U.S. Dept. of Labor

The U.S. Department of Labor ("DOL") recently announced its new approach for determining an Investment Advice Fiduciary under the Employee Retirement Income Security Act ("ERISA") and the Internal Revenue Code ("the Code"). This new approach, announced on June 29, 2020, follows a 2018 decision by the U.S. Court of Appeals for the Fifth Circuit that vacated the Department's 2016 fiduciary rule and its exemptions.

Alcohol-Induced Blackout: How Does Alcohol Impact Memory?

Alcohol-induced blackout is a topic that comes up often in the criminal justice system. It’s not unusual for defendants to have no memory of their behaviors while they were under the influence of alcohol. A common question that arises is “How could have a defendant committed a crime but have no recollection of their actions?” While it’s entirely possible for the defendant to lie about what they do or don’t remember, it’s also possible that they genuinely can’t remember what they did. The goal of this article is to discuss how alcohol can impact memory and explain why a defendant can’t recall events while they were under the influence of alcohol due to an alcohol-induced blackout.

Excessive Fee ERISA Litigation Update

Retirement plan sponsors are coming under increased litigation risk as the number of "excessive fee" cases spreads to smaller funds.

Erisa Reportable Events for Active Participant Reductions

As coronavirus-related workforce reductions increase, employers should be mindful of their reporting obligations to the Pension Benefit Guaranty Corporation (PBGC) under the Employee Retirement Income Security Act (ERISA).

A Muslim American Reflects on the 100th Anniversary of the 19th Amendment to yhe U.S. Constitution

Provided by: Abed Awad, Esq.
As America marks the 100th anniversary of the ratification of the 19th Amendment that guaranteed women the right to vote– in practice it was primarily reserved for white women, we reflect on gender-equitable principles essential to freedom and democracy.

U.S. Supreme Court Rules on Defined Benefit Plan Litigation

“Courts sometimes make standing law more complicated than it needs to be,” writes Associate Justice Brett M. Kavanaugh in the Supreme Court’s June 1, 2020 decision on Thole et. al. v. U.S. Bank N.A. et. al.

COVID-19: CARES Act Provisions for Retirement Plan Sponsors and Participants

As employers struggle with the financial implications of the COVID-19 pandemic, many are looking into the possibility of suspending contributions to employee retirement plans that they manage. At the same time, employees who are struggling to make ends meet may be looking into making withdrawals or taking loans from their retirement accounts.

Biomechanical Evaluation of Motorcycle Helmets: Protection Against Head and Brain Injuries

Motorcycle accident victims worldwide account for more than 340,000 fatalities annually, with the Unites States ranking 8th highest in number of motorcycle accident deaths, largely due to non-mandatory motorcycle helmet requirements for adults in a number of States. Seventy-five percent of all fatal motorcycle accidents involve head and brain injury, with rotational forces acting on the brain the primary cause of mortality. Current motorcycle helmets are reasonably effective at reducing head injuries associated with blunt impact. However, the mechanism of traumatic brain injury is biomechanically very different from that associated with focal head injury. This study was conducted to evaluate the effectiveness of current motorcycle helmets at reducing the risk of traumatic brain injuries.

Psychological Evaluations for Immigration Court: The 7 Cases When You Might Need an Evaluation

Immigration has become a hot button topic in the United States over the past several years. There are more and more people every year applying for various waivers and petitions in order to stay in the United States and build a better life for themselves and their families. There are dozens of different waivers and petitions that you can apply for. This whole process can be very confusing, overwhelming, and intimidating. We are not attorneys so we can’t go over all the different waivers and petitions in this article. We recommend you consult with an immigration attorney so they can represent you and help you through this process. For some waivers or petitions, your attorney might request a psychological evaluation in order to help build a stronger case.

Law Enforcement Fitness for Duty Evaluations: The Definitive Guide

Fitness for Duty Evaluations have become more common for public safety positions. Courts throughout the United States have ruled that due to the level of trust and power given to law enforcement officers, law enforcement agencies have a responsibility to ensure that officers are fit to perform their duties. When an employer has a reasonable belief that an employee has a psychological condition that impairs their ability to perform essential job functions or poses a direct safety threat, they can require the employee to undergo a fitness for duty evaluation.

Violence Risk Assessments: A Guide to Evaluating Violence Risk in Criminal Cases

Violence risk assessments are becoming more common in the criminal justice system. Forensic psychologists are conducting these evaluations on behalf of the court, defense attorneys, and probation and parole departments. Violence risk assessments are used in a variety of situations in criminal cases including pre-trial proceedings, mitigation, sentencing, and determining suitability for parole and probation. Despite the fact that violence risk assessments are more prevalent, there is still confusion regarding what a violence risk assessment is, how it can and should be used, and the benefits and limitations associated with a violence risk assessment.

Can Your Credit Score and Credit Reputation Be Recoverable Damages in a Divorce? Yes

Doug Minor, Is a Credit Scoring, Credit Reporting, Personal Finance and Mortgage Expert. He has served as a FCRA Credit Reporting, Credit Scoring, Mortgage and Damages expert witness in over 125 cases in both Federal and State Courts across the U.S.

Probability of Frontal Airbag Deployment in Vehicle Collisions

Accident reconstruction experts often determine the impact severity of a vehicular collision in their forensic investigations. A common collision severity index is Delta-v, or change in velocity of an object during a collision event. Airbag deployment thresholds can be a useful metric of collision severity in accident reconstruction applications. The National Automotive Sampling System (NASS) has provided a publicly-available database of real world motor vehicle collisions, including event data recorder (EDR) reports retrieved from airbag control modules. These reports typically indicate the airbag deployment status and the corresponding Delta-V of each recorded event.

Accident Reconstruction and Human Factors in Pedestrian Impacts

Accident reconstruction experts are retained to determine what happened in pedestrian collisions by analyzing the physical evidence. Understanding the relative positions between a vehicle and a pedestrian leading up to a collision can help parties determine liability. Experts take into account factors such as the vehicle shape, braking activity, geometry of pedestrian, impact configuration.

COVID-19 - The Residuals

The Random House Dictionary of the English Language defines residual as that which remains. This is not an article about the 300 million people worldwide who are not in workplaces or classrooms because of COVID-19. This is not an article about locked down cities, overwhelmed medical facilities, stock market declines, travel plans in tatters or cancelled conferences, sporting events, and concerts. This is an article that will attempt to calculate what the worldwide economic and higher education landscape will look like after the threat of COVID-19 has dissipated; what remains.

COVID -19 Will Accelerate the Decline in International Student Enrollment in the United States

“Dates of destiny are always on time.” - Anonymous “I hate quotations. Tell me what you know.” - Ralph Waldo Emerson

Higher Education Opportunities After COVID-19

“The great thing in this world is not so much where you stand, as in what direction you are moving.” - Oliver Wendell Holmes

What Is the “New Normal” Post COVID-19?

I am consistently amazed by the resiliency of the human spirit I see in our County. As Americans, we all have a bit of that “Pioneering Spirit” that moved our for bearers to forge new pathways into the unknown. That resilient pioneering spirit is alive

Global Supply Chains in the Wake of Covid-19

To find guidance, we talked with Rosemary Coates, the Executive Director of the California-based Reshoring Institute, a non-profit that provides information, research, and support for companies trying to reshore their manufacturing and services back into the United States. (Full disclosure, Rosemary is also co-author of the supply chain treatise, Legal Blacksmith: How to Avoid and Defend Supply Chain Disputes, with SPB partner Sarah Rathke. She is also an expert witness and the President of Blue Silk Consulting.)

Damages Expert Witnesses Can Provide Clarity in Lost Profits Cases

By HG.org
Lost profit cases typically involve a wrongdoer, the defendant, who caused economic damage to a wronged party, the plaintiff. To recover what was lost by the defendant’s wrongful action, the plaintiff must prove in a court of law that they suffered general damages, including lost profits. They must show the defendant caused a specific or estimated loss that is reasonably certain, not a guess. Lost profit calculations are necessary to prove damages in breach of contract actions that require plaintiffs to prove damages that the parties could have foreseen at the time they made their agreement.

PBGC Issues Administrative Review Regulations

The Pension Benefit Guaranty Corporation (PBGC) released updated rules amending its administrative review regulations. The new rules only apply to plans covered by PBGC’s single-employer plan termination program. These updated rule amends PBGC’s regulations on rules of administrative review of agency decisions to clarify, simplify, and make other editorial changes to the language, as well as to codify PBGC practices.

Harm to Credit

The financial impact to someone’s credit profile after it has been harmed.

Can You Arb The Statarbers?

This article explains the hush-hush losses among statistical arbitragers. Statarbers are exposed to factors, which have been dispersing recently, and so should the statarbers. The likely soluton is that large redemptions are taking place, starting by the quant-equity managers, the risk-parity programs and the highly leveraged large multi-strategy hedge funds.

Losing Your Shirt, Institutional Style

Recent market moves are extreme, but such events are far from rare. Actually, they are quite frequent. Nevertheless investors (from modest to institutional) sell insurances against market crashes, and repeatedly lose institutional amount of money. Malachite Capital, a $600m NY hedge fund, has been selling tail risk in various forms in extremely large quantities. They just announced that they are in default. Problem, their positions are so large, that they might take several broker-dealers with them.

What Just Happened? Some Volatilities Were Squeezed Last Week

The market events of the last week have been drastic, not only in movements, but also in volatility surface deformation. Bridgewater's purchase of 1,000,000 lot of options as a hedge is probably a cause of the current volatility

Clients Crossing Borders in the Massage Treatment Room

Provided by: Benjamin Institute
Thanks to the women of the #MeToo movement, who have courageously exposed rampant sexual harassment and assault, our society is being forced to confront this upsetting reality and change it for future generations. The massage treatment room is a microcosm of the greater society, so we sadly find the same types of issues there. Much like in the greater community, more attention needs to be paid to this phenomenon in the field of massage.

A Guide to the New SECURE Act for Retirement Savings

The “Setting Every Community Up for Retirement Enhancement Act” (SECURE) was signed into law on December 20, 2019. The new law represents the most significant changes to 401(k), IRA and other retirement plans in more than a decade.

The Use of California Construction Expert Witnesses

By HG.org
Outside persons can help lawyers win their cases. One example of such assistance for lawyers is the use of California construction expert witnesses to achieve success in construction law cases in California.

The Use of Forensic Psychiatry Expert Witnesses in Non-Criminal Litigation

By HG.org
It is often mistakenly assumed that forensic psychiatry expert witnesses only assist lawyers in criminal litigation cases. In fact, they can help lawyers in many other types of litigation.

The Use of Forensic Psychiatry Expert Witnesses in Non-Litigation Matters

By HG.org
While forensic psychiatry expert witnesses can assist lawyers in criminal and other litigation cases. they can also help lawyers in non-litigation matters. Lawyers can use forensic psychiatrists to add certainty and minimize risk in non-litigation matters.

The Role of the Forensic Psychiatry Expert Witness

By HG.org
Lawyers often rely on third parties to help them succeed in their cases. One person who lawyers can use to assist them in prevailing in their cases is the forensic psychiatry expert witness.

The PBGC Multiemployer Insurance Program Deficit Increases

The Pension Benefit Guaranty Corporation’s (PBGC) Fiscal Year 2019 Annual Report was released in November, 2019. The Report showed that from FY 2018 to FY 2019 the Multiemployer Insurance Program’s deficit went up $11.3 billion (FY 2018- $53.9 billion; FY 2019- $65.2 billion), while the Single-Employer Program saw a positive net position of $8.7 billion.

Effective Licensee Monitoring

Businesses that include proper contract language instructing a licensee how to calculate a royalty, the specific documents to retain and that have a proactive licensee monitoring program are best positioned to achieve higher royalty revenues at reduced monitoring costs without damaging business relationships.

The Psychological Assessment of Testamentary Capacity and Other Legal Capacities in California

This article provides a conceptual framework for understanding legal capacity and describes the components and legal basis of a psychological assessment of testamentary capacity, contractual capacity, undue influence, and the capacity to make medical decisions. It may serve as a reference for attorneys to identify the key aspects of an effective capacity evaluation, and to prepare for cross-examination of opposing experts.

Psychological Personal Injury Evaluations, Trauma, and Post Traumatic Stress Disorder

This article reviews best practices for conducting psychological personal injury evaluations in civil proceedings. It may be useful for attorneys to review in order to understand the components of an effective personal injury evaluation and to prepare for the cross-examination of opposing psychological experts.

Youthful Offender Psychological Mitigation Evaluations for Franklin Hearings and Other High Stakes Proceedings

This article reviews the legal basis, research foundations, and a potential evaluation structure of youthful offender mitigation evaluations in California.

Hiring a Forensic Physician, What Will it Cost?

Provided by: ForensicExpertPro
What you can expect to pay an Expert Witness in Medicine

Pension Risk Transfer Review for 2019

Pension plan sponsors in the U.S. continued to pursue a strategy known as “pension risk transfer” in 2019. According to the Secure Retirement Institute (formerly LIMRA SRI), 2019 year-to-date pension buy-out sales totaled $16.7 billion through the third quarter, which is a 4% increase over 2018.

Post-Traumatic Stress Disorder (PTSD): Evaluating Trauma in Personal Injury Litigation

Post-Traumatic Stress Disorder (PTSD) is one of the most common psychological conditions that’s reported by plaintiffs in personal injury cases.

Future Damages Under the Defend Trade Secrets Act

A Summary Judgment ruling in Steves and Sons, Inc. v. JELD-WEN, Inc. heard in U.S. District Court for the Eastern District of Virginia in 2018, provides guidance to trade secret owners seeking damages under the Defend Trade Secrets Act (“DTSA”). The Court ruled that trade-secret damages may include anticipated future use of the trade secret under the DTSA if the anticipated future use is non-speculative and based on solid evidence.

Not Guilty by Reason of Insanity: Evaluating Criminal Responsibility at The Time of the Offense

What does it mean when a defendant pleads, Not Guilty by Reason of Insanity (NGRI)? You’ve probably heard the term “insanity” thrown around but most people don’t know the legal criteria for an NGRI plea. “Insanity” is a legal term rather than a medical or mental health term. In order to understand how criminal responsibility is evaluated, you have to have an understanding of the legal criteria of NGRI. The goal of this blog post is to provide an overview of the laws regarding insanity and how we evaluate individuals to determine if they are not guilty by reason of insanity.

Not Guilty by Reason of Insanity vs. Incompetent to Stand Trial: What’s the Difference Between Them?

The terms insanity and competency are two legal terms that come up often in the criminal justice system. Most people get the two terms mixed up and don’t know the differences between them.

Competency to Stand Trial: An Overview of the Legal Guidelines for Evaluating Competency

If you’ve watched enough Law and Order, you’ve probably heard the term “Incompetent to Stand Trial (IST)” or competency to stand trial. We get a lot of questions from attorneys asking us if their clients are competent to stand trial. The rules and laws surrounding competency to stand trial can be confusing and difficult to understand. The goal of this blog post is to provide an overview of the laws regarding competency to stand trial and how we evaluate individuals to determine if they are competent.


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