Court closes door on associational claims

A recent federal court decision has serious implications for people who would like to pursue claims that they were discriminated against on the basis of their relationship with a person with a disability. The name of the case is Ayanna v. Dechert, Civil Action No. 10 12155-NMG, and on January 6, 2012, a judge in the United States District Court for the District of Massachusetts dismissed an important part of the plaintiff’s complaint.

The plaintiff did not claim that he had a disability himself, but rather that the defendants (his former employers) had discriminated against him because of his “association with a disabled individual,” namely his wife. He alleged that this violated the Massachusetts anti-discrimination law, M.G.L. c. 151B.

There is an important distinction between federal and state law. It is clear that plaintiffs can bring claims of this type under the federal Americans with Disabilities Act (ADA) because the statute contains an express provision to that effect.  But the equivalent state law, Chapter 151B, does not. The scope of Chapter 151B does not expressly extend to somebody who has a relationship or association with a disabled person. Even though the Massachusetts Commission Against Discrimination (MCAD) had previously ruled in favor of associational claims, this statutory difference was fatal to the plaintiff in Ayanna v. Dechert, and the judge allowed the defendant’s motion to dismiss the associational-discrimination count of the complaint. The federal court stated that the MCAD’s interpretation was not “binding” and lacked the “force of law.”

By holding that Chapter 151B, unlike the ADA, does not give rise to associational claims, the court followed the reasoning of the only state court to issue a ruling on the issue, the Superior Court for Essex County in Brelin-Penney v. Encore Images, Inc., 27 Mass. L. Rep. 254 (Mass. Super. Ct. 2010). In that case, the court held that in the absence of legislation, the non-disabled plaintiff could not qualify as a member of a protected class on the basis of a relationship with a disabled person.

Clearly this is a question of state law not federal law, so the plaintiff in Ayanna v. Dechert asked the federal district court to send the question to the highest state court, the Supreme Judicial Court (SJC). But the judge declined, so there is still no conclusive decision on the matter of associational claims in Massachusetts. Legislative action would clarify the matter, and one state representative, John Scibak of South Hadley, has filed a bill to bring 151B into line with the ADA. You can read Representative Scibak’s bill, H. 501, by clicking here.

Unless and until the SJC rules on the issue, or the Legislature amends Chapter 151B, Ayanna v. Dechert and Brelin-Penney v. Encore Images are the only authorities that provide guidance for potential litigants. As things stand, it seems highly unlikely that a claim for associational discrimination on the basis of disability would survive a motion to dismiss.

Green Confusion

There are two national political parties in the US that lay claim to the title Green. As you may have noticed, neither of them can claim to have helped elect any Green candidates recently. But that doesn't stop them fighting each other, rather like the feud in the Life of Brian between the Judaean Popular Front and the Popular Front of Judaea (splitters). Now the Green-on-Green rivalry has spilled over into intellectual property law.

After stymying the trademark application of the Green Party of the United States last year, the Greens/Green Party USA has filed its own application. It would like federal recogniton for the exclusive right to use its name as a trademark. Last year's TTAB decision held that the competing parties' marks are confusingly similar.

This is not the first time the Greens/Green Party USA has filed a trademark application. In filed once in February 1992 but failed to respon to an Office Action, so the USPTO deemed the application abandoned.  It tried again in August 1994, only to abandon the application again.

Third time lucky?  In March 2005, the Greens/Green Party USA filed another application.  Much correspondence ensued.

But then, on April 5, 2011, the United States Patent & Trademark Office issued the Notice of Publication, which started the clock running on the 30-day opposition period.  Will the Green Party of the United States file timely opposition? The clock is still ticking.

Pirate Party Making Waves

Ryan Moffitt is running for the office of state representative in Florida's 86th district.

Why does this merit a mention in my law-office blog, as opposed to my political blog, Mass Greens? The reason is that Mr. Moffitt's candidacy bridges third-party politics and intellectual property law, two subjects that rarely overlap, at least in my experience.

In addition to being a candidate, Mr. Moffitt is chair of the Florida affiliate of the Pirate Party, which campaigns for a thorough overhaul of copyright, patent, trademark, and privacy laws here in the US and at the international level. The party started in Sweden and now boasts outposts across Europe and the United States, including Massachusetts. 

One of the main planks in the Pirate Party's platform is the revision of the Copyright Act. At present, for works created after January 1, 1978, copyright lasts for the life of the author plus 70 years. In other words, copyright is descendible.  This means that the copyright in any given work outlives its creator, so that authors can leave their copyright to their legatees.

We can bequeath and inherit copyright just as we can bequeath and inherit other forms of personal property and real estate. A major difference is that the legatee's exclusive right to the copyrighted work evaporates at a certain point, i.e. 70 years after the testator's death.

Of course, 70 years is a pretty long time. When I started practicing law back in 1998, copyright lasted for life plus 50 years. Even 50 years is quite a long time for the public to have to wait for the exclusivity to expire and for a work to enter the public domain.

As the Pirate Party points out, these lengthy terms are a relatively recent phenomenom. Originally, Congress set a much shorter life-span for copyright, just 14 years. And that is the length of time that the Pirate Party would like the Copyright Act to revert to. It would also like to repeal the Digital Millennium Copyright Act and create a presumption in favor of derivative works constituting fair use, shifting the onus from the defendant (who currently has to prove that a derivative work is fair use) onto the plaintiff to prove that it is not.

The party also has opinions about trademark law, and I would like to know what the Pirates make of a new proposal before the Massachusetts Legislature. Senator Steve Tolman's bill (Senate 1635) would require courts interpreting Massachusetts trademark law to construe it in a way that is consistent with federal trademark law. 

Somewhat unusually for a Massachusetts statute the new law would contain an explicit intent provision, stating that it is the intent of the Legislature "to provide a system of trademark registration and protection substantially consistent with the federal system."

Well, Pirates and non-Pirates alike: What do you think? A sensible housekeeping measure or a slippery slope? 

New European Trademark Search Tool

OHIM, the Office for Harmonization in the Internal Market, has just unveiled its new, faster trademark and design search service, eSearch Plus. The new tool combines its predecessors, CTM-Online, RCD-Online, and TMview, and makes it easier for users to search for Community trademarks and designs including owners' details.

Three tips when using GREEN in a trademark

If you use the word green in your trademark or service mark, you're in good company. Thousands of businesses now use green to signal to their customers that the company uses environmentally friendly practices. On the bright side, the growing number of green trademarks shows that citizen-consumers are demanding higher standards in the market place. But it also means that green no longer helps differentiate your products and services the way it used to.

So if you're protecting your intellectual property rights by applying for federal trademark registration, here are three things to bear in mind:

First, remember that green is a descriptive term so in and of itself it would not qualify for federal trademark protection. Because so many businesses use the word, its value as a mark has becoming weaker. As a practical matter, how does this affect you? When you're completing your application, disclaim the exclusive right to use the word green.

Second, remember to state in your application that you employ environmentally friendly practices. Without that statement, you could receive an initial refusal from the examining attorney at the US Patent & Trademark Office. An initial refusal isn't fatal necessarily, but it involves an additional delay and more of your attorney's (billable) time.

Third, if you have not yet invested significant resources into branding, think about adapting your mark to a market in which green-ness is no longer such a niche. Remember that while descriptive terms like green get the message across, arbitrary and fanciful marks receive the highest level of trademark protection. As you know, choosing the right mark means treading a fine line and the proliferation of green trademark applications is an important factor to bear in mind.

Our Friends at the Bank

Uganda in the mid-1990s is the setting for Thursday's documentary, Our Friends at the Bank, which shows some aspects of the tripartite negotiations within and between the government of Uganda, the World Bank, and the International Monetary Fund.

I had several teaching goals in mind when I first decided to show Our Friends at the Bank, but watching the film again yesterday, while I was also thinking about the interviewing exercises you have been working on, one more course-related question emerged: Who is the client?

The adjunct faculty and I have been discussing this issue, and I plan on devoting some class time to it when we review the Fourth of July footage together. In addition to the 10 questions that I have prepared for you (see the focus-and-feedback sheet posted on TWEN) here is another set of questions: Which relationships in the film are analogous to the attorney-client relationship, and within those relationships what are the factors that make them different from the attorney-client relationship? Please mull this over while you watch.

Responsibility to and for clients is something else for us to think about. In the 2006 film The Last King of Scotland, starring Forest Whitaker as the Ugandan dictator Idi Amin, I noticed a motif that came back to me when I first watched Our Friends at the Bank.* Several times during The Last King of Scotland the camera focuses on a mosquito. I can't be certain what the filmmaker intended the mosquito scenes to convey, but what I took from the images were messages of blood-extraction and disease.

Those messages are consistent with the role of the anti-hero, the Scottish physician Nicholas Garrigan who, even while his patient (Idi Amin) despoils the whole country, enjoys the kind of celebrity lifestyle that an uncharitable observer would describe as parasitical.

The mosquito motif does not lead me to pose any further concrete questions of my own for you at this point. I am just asking you to ponder it and, if it triggers questions in your mind around the subjects of interviewing, counseling, ad negotiating, please share them with the rest of us.

* Just to help orient you temporally, Idi Amin fell from power in 1979, approximately 15 years before the events that Our Friends at the Bank covers.

Fourth of July Exercise

There were some great questions in class yesterday that drew my attention to gaps in the exercise and areas that I need to explain more thoroughly. So I'm glad we have a little time to clarify the objectives, the work product, and the roles.

If, after reading the following, you still have questions please feel free to e-mail me. I realise that time is of the essence and I'd like to reply promptly. Right now I'm having trouble accessing my UConn e-mail from home, so send your questions to peter@petervickery.com. That way I can respond even while I'm at home.

Objectives and Work Product
When I designed the syllabus I envisioned two items of gradable work product coming out of this exercise, namely a settlement agreement and a reflective memorandum. Generating a settlement agreement, however, would demand considerable negotiation. Practice is immensely beneficial and you would reap real educational benefit from another Balance of Power-like experience. But crafting a settlement agreement would probably take more time than I can fairly ask of you and, given the fact that you do have other classes and a life outside of law school, would be unduly burdensome. So no settlement agreement.

I still want the reflective memorandum, but instead of a settlement agreement I would like you to write an office memorandum, the kind of detailed memo you would put in the file to refresh your memory the next time you pick it up, or to explain the case to a colleague who is picking up the file for the first time. So there are two possible audiences for this office/file memo: yourself and your colleagues.

Now, even though I do not require a negotiated settlement it would be helpful for you to converse with one another informally. Yesterday evening after class one of the adjunct faculty, Attorney Mike Harrington, mentioned to me that the second round of meetings (when you counsel your respective clients) will be more productive and realistic if you have talked to one another beforehand. For example, those of you representing the Town Manager could check in with counsel for the parade organizer and the chair of the protest committee. Mike is absolutely right, so please do sound out your counterparts in other teams so get a sense of what their clients want.

Getting back to the gradable work product, what should the office/file memo look like? As in real life, this document should reflect the substance of your conversations with your client. It should be no more than five pages long, double-spaced, in 12-point Times New Roman font. At the top of the document you should write "memorandum." In the "to" line write "file," and in the "from" line write your name. The subject line should state the name of your client.

Roles
In our exercise, Attorney Mike Harrington is playing the role of the Town Manager, Michael Bartolo. Attorney Karla Turekian's character is Alex Sachs, the parade organizer. Attorney Thomas Jones will star as Joseph Kelly, the chair of the anti-war group Amherst Committee for Peace and Justice (ACPAJ, pronounced ack-paj).

Links
In addition to the documents on TWEN, you might want to do some additional background reading to get a sense of the real-life parade dispute. So here are the sites that flashed before your eyes briefly in class:

For the minutes of the Select Board meeting click here.

To browse the Amherst Bulletin's news, columns, and letters to the editor you can use the paper's search engine.

For the relevant post on the Only in the Republic of Amherst blog click here.