Summer 2009 Newsletter Released

Click below for a link to our Summer 2009 Newsletter:

THE LEGAL ADVISOR NEWS Vol. 1 No. 8

In this issue:

• FIRM RECOVERS CLIENT DOMAIN NAME FROM CYBERSQUATTER
• PLUMBING SYSTEMS & DESIGN MAGAZINE SELECTS LYNAM & ASSOCIATES ARTICLE FOR PUBLICATION
• PROMOTING CLARITY IN CONTRACTS
• NEW ILLINOIS OVERTIME LAWS
• REGISTER TRADEMARKS WITH U.S. CUSTOMS TO GET FULL ENFORCEMENT

Case Name:______________________

FIRM RECOVERS CLIENT DOMAIN NAME FROM

CYBERSQUATTER

Our client, an international association of engineers, was the registered owner of a domain name. However, their domain name was misappropriated by a Korean company during a brief registration lapse and registered with a Korean web registrar. The Korean “cyber squatter” was taking the good will and reputation that our client had established, receiving payment each time someone mistakenly visited the website.

Fortunately, our client had registered and maintained its name as a U.S. trademark. Evaluating the thorny jurisdiction problems of litigating against Korean nationals with no contacts with the United States, we recommended our client pursue this matter through the Internet Corporation for Assigned

Names and Numbers (“ICANN”). Wielding the rights granted under the U.S. trademark laws, we initiated action, asserting that the defendants had no legitimate rights or interests in the domain name and that the defendants were creating confusion by diverting legitimate users to their domain.

Our case was heard by a panel headed by Mr. Hong Oo Baak, a former justice of the Korean Supreme Court. The favorable ruling we obtained required the defendants to transfer the registration and ownership of the domain to our client. Persuasion finally induced the registrar to transfer the web domain to a U.S. registrar, securing our client’s legal rights in the domain.

For a copy of the decision, please visit our website at www.lynamlaw.com.

Plumbing Systems and Design Magazine selects Lynam & Associates article for publication

Our article “Office Document Retention Policies—Ticking Time Bomb for your Office?” was selected for publication in a recent edition of the prestigious international engineering journal, Plumbing Systems and Design. The article discusses the importance of a document retention policy and finds that a lack of establishing and following such a policy was the singular reason for the fall of one of the largest professional services firms in the world. A document retention policy is a company-wide policy that identifies which documents, both in paper and electronic from, must be retained and for how long each document should be retained. It is not easy to establish a standard policy, because different types of records require different procedures, and laws and statutes may vary between industries and geographic locations.

The federal judiciary recently enacted new

Federal Rules of Civil Procedure which address computer generated documents that are sought by opposing parties during discovery.

Just like paper documents, a company has an obligation to disclose computer files or any other electronic files upon the opposing party’s request. According to the provisions, the responsibility is on the company that possesses the information to conform to the new rules, and few are prepared to handle that responsibility. Document retention is a problem that all businesses face, and few have developed more than a minimally adequate solution. Businesses now must retain many electronic files and data which were not previously required, and the consequences for not complying involve serious penalties. Smart employers should (1) create and maintain document retention policies that are consistent with the applicable law; (2) develop electronic communications that automatically discards contents after a reasonable period, but that can be suspended when required; (3) assign at least two manager-level employees with appropriate training and give them full authority to administer the firm’s document retention/destruction policy; and (4) limit the use of off-network electronic portable storage devices, such as home computers, in order to comply with these new requirements.

For more information, see the article on our website, www.lynamlaw.com.

DAVID LYNAM SELECTED AS FACULTY FOR ILLINOIS DEVELOPMENT SEMINAR; LECTURES ON PROMOTING CLARITY IN CONTRACTS

The Seminar Group’s recent two-day “Illinois Development and Finance” presentation included our presentation on promoting and negotiating for clarity in contracts. Attendees included developers, lenders, real estate executives, municipal attorneys, and governmental officials, who were advised that

a complete, thorough, and well-negotiated contract is essential in order to avoidnmisunderstandings and expensive litigation.

A successful contract will set forth a comprehensive and mutually understood agenda whereby the goals of both parties are well-defined and attainable. A contract is generally successful if it (1) makes progress of the project predictable, (2) reflects the parties’ objectives and helps them achieve them, (3) sets realistic expectations, (4) provides a framework for future negotiation, and (5) sets a cooperative tone for the working relationship by promoting candor and understanding. In order to reach these goals, a contract must be clear and limited to only one interpretation. Even when there is a well-drafted contract, the parties may still find themselves at odds over the terms or implementation of the agreement. Anticipating the most commonly contested issues and understanding the positions of both parties can greatly minimize costs and disagreements when the unexpected happens.

There are some common points of conflict between parties involved in any contract. The first important step is to identify all of the contract documents by which the parties are bound. This can help eliminate confusion when determining what a party’s duties are under a contract. Contracts should allow for termination where performance is substandard. This point can often create a conflict if it is not properly explained in the contract. It is also important to make certain that the terms of payment are clear. Ambiguous language involving the methods of calculation of payment, methods of pay adjustment, methods of payment itself, or reimbursement for out-of-pocket expenses can create hostility between the parties. The parties can often be in disagreement regarding how to handle disputes. Many contracts provide that the parties first attempt mediation and then arbitration before a party has the right to litigate a matter. In addition, the rights and obligations of others essential to the project but not directly involved in the contract (i.e., a lender) may become a contentious issue. Finally, indemnification can create a conflict between the parties if it is not adequately described in the agreement.

For more information, including our article on contract negotiation in the real estate construction context included in the Illinois Development and Finance seminar materials, please see our website, www.lynamlaw.com.

PUBLISHED BY LYNAM & ASSOCIATES, Chicago and Barrington, Illinois,by

telephone at our Chicago offices, (312) 541-1500, or Barrington, (847) 381-7747.

NEW ILLINOIS OVERTIME LAWS

New laws in Illinois are making violations of overtime statutes very costly for employers, highlighting the importance of understanding which employees are exempt from overtime laws. Simply because an employee is paid a salary, he or she is not exempt from overtime pay. In Illinois, if an employee earns less than $455/week, or $23,660/year, he or she is generally entitled to overtime. If an employee is earning more than that, he or she may be exempt, depending on job classification. Employees may recover lost wages and damages either from a private civil action, or as an action initiated by the Department of Labor. Employees entitled to recover under the overtime laws can also recover heavy penalties against the employer as well as attorney’s fees.

Generally, “white collar” employees, such as executives, professionals, computer programmers, administrative employees, and outside sales employees are frequently exempt from the overtime laws. However, employers who regularly deduct pay for absences, discipline, or “matters of practicality,” may invalidate the exemption status of employees who are otherwise exempt. Employers who are attentive and mindful of the details in these new overtime statutes can avoid stiff penalties.

For more information, see the article, New Illinois Overtime Laws, published on our website, www.lynamlaw.com.

REGISTER TRADEMARKS WITH U.S. CUSTOMS TO GET FULL ENFORCEMENT

United States trademark laws provide powerful protection against infringement, but those protections only extend to those who have registered their trademark with the U.S. Patent and Trademarks Office. However, despite what many international firms may believe, trademarks registered in any other country receive no protection from the U.S. government, as one of our clients discovered. Our client had registered their trademark in Canada when a company started using their trademark in the U.S., taking advantage of their brand recognition, reputation, and good will. Because their trademark was not registered with the U.S. trademark office, their trademark rights were not enforceable in the U.S. Foreign companies doing business in the U.S. must go through the registration process here.

U.S. trademark holders are frequently unaware that they can obtain greater trademark protection from foreign companies using their marks by registering trademarks with U.S. Customs and Border Protection. Trademarks submitted with proper documentation will be enforced as goods pass into the U.S. So, if a foreign company appropriates your trademark and imports goods into the U.S., those goods are to be

stopped at the border before arriving in the U.S. Thus, recordation of your U.S. trademark with customs will provide the protection from foreign infringement that normal trademark registration lacks.

For more information, see our website, www.lynamlaw.com.