Daily Business Review: Elder-Abuse Plaintiffs Attorneys Weigh In After Nursing Home Deaths

Daily Business Review
By: Celia Ampel
Daily Business Review
September 15, 2017

Elder-law attorneys were quick to weigh in Thursday on the legal implications of eight deaths at a Hollywood nursing home following a loss of air conditioning during Hurricane Irma.

Any need for regulatory reform will be determined by the facts as they emerge, said Fort Lauderdale attorney Jonathan Gdanski of Schlesinger Law Offices. Key questions, he said, would include the following: What steps, if any, were taken to transport nursing home residents? Was the facility monitoring the deterioration of patients over time? And what plans were in place to help those who needed assistance the most?

“?Some of the most basic facts still need to be determined, yet what is already known seems to present a clear picture of absolute, complete, reprehensible conduct, which resulted in death,” said Gdanski, a plaintiffs lawyer focused on catastrophic personal injury and medical malpractice.

Meanwhile, he said, “the large majority” of caregivers across the state appear to have been adequately cautious in the face of the storm.

More than 150 residents of the Rehabilitation Center at Hollywood Hills were evacuated to hospitals Wednesday. Three people were already dead when first responders arrived, and five more died that afternoon. Gov. Rick Scott called the deaths “unfathomable,” and state and local authorities have started a criminal investigation.

The nursing home’s administrator, Jorge Carballo, said in a statement that the facility was “cooperating fully with relevant authorities to investigate the circumstances that led to this unfortunate and tragic outcome.”

Broward County reported the nursing home told officials Tuesday the air conditioning was out but did not request help, according to the Associated Press. The facility complied with a state law requiring an evacuation plan and hurricane drills.

“I have been litigating nursing abuse cases throughout Florida for years and this is the worst case I have seen,” said Fort Lauderdale attorney Marcus Susen of Koch Parafinczuk Wolf Susen.

The Hollywood nursing home seems to be an outlier rather than an example of a systemic problem, said Miami attorney Bruce Katzen of Kluger, Kaplan, Silverman, Katzen & Levine.

“I believe our existing regulatory scheme is sufficient to administer nursing home and rehabilitation facilities,” said Katzen, whose practice includes elder abuse cases. “However, the existing regulatory system needs to be enforced. This facility apparently had a long list of violations.”

To read the full article, click here.

Law360: Plaintiffs Bar Perspective: Kluger Kaplan’s Bruce Katzen

Bruce Katzen - kluger Kaplan

Bruce A. Katzen is chairman of the trust and estate’s litigation practice group at Kluger Kaplan Silverman Katzen & Levine PL in Miami. He focuses his practice on litigation of probate, trust and guardianship disputes as well as commercial litigation, including corporate matters, securities, accountants’ liability and stockbroker liability and Financial Industry Regulatory Authority arbitrations. He has become particularly recognized for his work in the areas of financial fraud, franchise disputes, probate, trust and guardianship disputes, company purchase and sale disputes, and life insurance coverage disputes.

Katzen’s early training as a certified public accountant piqued his interest in the complex financial fraud and probate cases that he handles for his clients. Given the technical financial issues in most of his cases, his background enables him to more thoroughly understand the issues, more precisely examine witnesses and experts, and more zealously advance his client’s position.

Q: What’s the most rewarding aspect of working as a plaintiffs attorney?

A: The most rewarding aspect of working as a plaintiffs attorney is assisting individuals who have been injured or harmed in some fashion. In my practice, I frequently have clients come to me facing emotional and financial hardship and are in need as a result of them being wronged. It is rewarding to work with them to right this wrong and recover damages on their behalf.

Click to read more on Law360.com.

KKSKL Top Lawyers Recognition

Kluger Kaplan is proud to announce that the firm and many of its attorneys have been recognized by major industry and state publications as some of the top Miami lawyers, recognizing their top litigation expertise and experience.

Florida Trend

Florida Trend LawyersThis is a prestigious list of lawyers from across the state of Florida.  KKSKL Founding Member, Todd Levine, has been recognized among Florida Trend’s Florida Legal Elite. Partner, Jamie Zuckerman, has also received the honor to be included in the Up & Comers section being one of only 137 attorneys under 40 years old who are said to represent the future of the legal profession in Florida.

 

Super Lawyers

Super LawyersDeborah Chames, Abbey Kaplan, Bruce Katzen, Alan Kluger, Todd Levine, Jason Marks and Steve Silverman have all been named to the 2017 Florida “Super Lawyers” list. This year marks over ten years of recognition by the publication for Abbey Kaplan, Alan Kluger, Todd Levine and Steve Silverman.

 

The firm’s new generation of legal all-stars have also been recognized as 2017 Super Lawyers “Rising Stars”:

Marko Cerenko

Josh Rubens

Richard Segal

Jamie Zuckerman

Super Lawyer Recognition

Business Litigation:

Abbey Kaplan

Alan Kluger

Steve Silverman

Todd Levine

Family Law:

Deborah Chames

Jason Marks

Estate & Trust Litigation:

Bruce Katzen

 

Thank you to our clients and colleagues who have supported us over the past 8 years.  It is an honor to be recognized for the work we do for our clients each and every day.

 

Google: A Victim of Its Own Success?

ELLIOT V. GOOGLE, 2017 WL 2112311 (9TH CIR. MAY 17, 2017)

“Google it.”  Of course, we all know what this means. Indeed, the word “Google” has earned such widespread recognition that in 2006 it was added to the dictionary.  While this might be considered the epitome of success, it can be a nightmare in terms of trademark protection.

Google Lawsuit

Background

“Google” is what trademark law refers to as a fanciful mark.  Fanciful marks are made up, and similar to arbitrary marks, have no association to a particular type of goods or services.  For example, “Apple” has no apparent relation to computers just as the names Uber, Twitter, and Amazon give no indication of the particular product or service it provides.  For that reason, fanciful and arbitrary marks generally garner the highest level of trademark protection because it usually takes the trademark owner significant effort marketing its business to reach the point that the public associates its product or service with the mark.

However, when a fanciful term receives such unimaginable success that it transforms itself into a concept or in Google’s case, an entry in the dictionary, it may be in danger of losing its trademark protection and becoming a dreaded “generic” term.  Both “aspirin” and “escalator” were victims of “genericide.”

To determine if a mark has become generic, the Ninth Circuit Court established the “who are you/what are you” test.[1]  Applying this test, a finder of fact would analyze if a term points to the source (who you are), or if a type of good (what you are).[2]  An example is that the trademark “Coke” indicates a soft drink made by “Coca Cola” and the generic term “soda” indicates any carbonated soft drink. Once a term is found to be generic, it has no trademark protection, and can be fairly used by anyone in connection with describing goods or services.

Case

Aware of this risk, Google has vigilantly sought to protect its name.  In 2012 Google discovered that Chris Gillespie (“Gillespie”) acquired 763 domain names that included the term “Google.”  David Elliot (“Elliot”) purchased and registered the domain names using Gillespie’s GoDaddy.com account. Each of the domain names paired the term “Google” with a person, brand or product, such as “googledisney.com” and “googlebarackobama.com.” Google promptly objected to the registration of the domain names and filed a complaint with the National Arbitration Forum (“NAF”) using its dispute resolution procedure. Google argued that the domain names were confusingly similar to the “Google” trademark, were registered in bad faith and constituted cybersquatting.  Google prevailed and NAF transferred the domain names to Google.

Elliot then filed an action in the Arizona District Court (Gillespie later joined in the suit) for cancellation of the Google trademark on the grounds that the word “google” had become a generic term to describe the act of internet searching.

Ruling

After cross-motions for summary judgment, the district court found that Elliot and Gillespie failed to present sufficient evidence to support a jury finding that the public primarily understands the word “google” as a generic name for internet search engines[3].  Elliot and Gillespie appealed to the Ninth Circuit claiming that (1) they had presented sufficient evidence to create a triable issue of fact and (2) that the district court misapplied the primary significance test and failed to recognize the importance of the use of google as a verb.

On May 17, 2017, the Ninth Circuit affirmed the finding that a claim of genericide must always relate to a particular type of good or service, and that use of ‘Google’ as a verb is not synonymous with a finding of genericide[4].

Impact

Like Google, trademark owners must always be vigilant, monitor the public’s use of its mark and take affirmative steps to correct any public misuse to protect against potential claims of genericide.

 

Terri Meyers

Terri Meyers is a Partner at the Miami firm of Kluger Kaplan Silverman Katzen & Levine, P.L. and leads the firm’s Intellectual Property department.

 

 

 

Mayda_Nahhas

Mayda Nahhas is a law clerk at Kluger Kaplan Silverman Katzen & Levine, P.L., a rising third-year law student at Nova Southeastern University – Shepard Broad College of Law, the Goodwin Alumni Editor for Nova Law Review Vol. 42, and the Founding President of Nova Southeastern University Fashion Law Association.

 

[1] Official Airline Guides, Inc. v. Goss, 6 F. 3d 1385 (9th Cir. 1993).

[2] Yellow Cab Co. of Sacramento v. Yellow Cab of Elk Grove, Inc., 419 F.3d 925, 929 (9th Cir. 2005); Filipino Yellow Pages, Inc. v. Asian Journal Publication, Inc., 198 F.3d 1143, at 1147 (9th Cir. 1999).

[3] Elliot v. Google, 2017 WL 2112311 at 2 (9th Cir. 2017).

[4] Id. at 3.

Supreme Court’s First Ruling on Fashion Copyright

Broadening Intellectual Property Rights for the Fashion Industry

Fashion Copyright

Case:

In a first ever fashion copyright decision, the U.S. Supreme Court analyzed whether design elements on a cheerleading uniform could be copyright protected.

At issue were two competitor manufacturers of cheerleading uniforms, Star Athletica, LLC (“Star Athletica”) and Varsity Brands, Inc., Varsity Spirit Corporation and Varsity Fashions & Supplies, Inc. (collectively “Varsity”).

Varsity had successfully acquired approximately 200 copyright registrations for two and three dimensional designs that appear on its cheerleading uniforms. Varsity sued Star Athletica for infringing five of Varsity’s copyright registered designs. In 2014, the District Court held that fashion related patterns for apparel were non-copyrightable if the work of art was not identified separately from its garment. It reasoned that the cheerleading uniform’s designs served a useful function of identifying a cheerleading uniform as such.

Background:

Under the Copyright Act of 1976[1], uniforms and other clothing are generally considered useful articles and therefore such items cannot be copyright protected. The fashion industry has customarily relied on other areas of intellectual property law such as trademark, trade dress or design patents to protect their fashion designs and brand. This is because although some elements of fashion can be protected by copyright law such as drawings, photographs, editorial content and software embedded in wearable tech, before this ruling, fashion designs were not copyright protectable.

Ruling:

The Supreme Court, in a majority 6-2 decision, reversed the District Court’s decision and ruled in favor of Varsity Brand, finding that individual design elements incorporated into such useful articles are eligible for copyright protection.

The Sixth Circuit’s decision held that the designs were “separately identifiable” because a blank cheerleading uniform can appear side-by-side a designed cheerleading uniform and both would still be identified as a cheerleading uniform. It further reasoned that the designs could stand-alone because the designs could be incorporated onto other tangible mediums.

Impact:

This decision marks an important milestone for the fashion industry and will no doubt spawn further litigation as designers press newfound copyright protection and copycats wonder what is safe. A designer wishing to obtain protection for a design must still prove ownership of an original “pictorial, graphic, or sculptural work which include two-dimensional and three-dimensional works of fine, graphic and applied art[2],” and obtain a registration from the U.S. Copyright Office. Although registration is not required to prove ownership of an original work of art, registration is a requirement in order to maintain a copyright infringement action in federal court.

Finally, Justice Ginsburg found the analysis of separability of the design from the useful article unnecessary because the designs at issue are not designs of useful articles, rather, the designs are themselves copyrightable pictorial or graphic works reproduced on useful articles[3].” Given that the design is copyrightable, Justice Ginsburg points out that the right “includes the right to reproduce the work in or on any kind of article, whether useful or otherwise[4].” This common-sense approach may send a clear message to the U.S. Copyright Office as they review the inevitable influx of copyright registrations which will follow this opinion.

 

Terri MeyersTerri Meyers is a Partner at the Miami firm of Kluger Kaplan Silverman Katzen & Levine, P.L. and leads the firm’s Intellectual Property department.

 

 

 

Mayda_NahhasMayda Nahhas is a law clerk at Kluger Kaplan Silverman Katzen & Levine, P.L., a second-year law student at NSU Shephard Broad College of Law and Founding President of NSU Fashion Law.

 

 

 

[1] 17 U.S.C. § 101 (2010).

[2] 17 U.S.C. § 101.

[3] Star Athletica, Inc., 2017 WL 1066261, *14.

[4] 17 U.S.C. § 113(a) (2010).