December, 2010: APPEALS LAWYER

Many adopting parents and adopted children across the United Kingdom have at least once asked themselves whether the process of adopting a child is final or whether there is a possibility that the biological parents could successfully reverse the new reality by ‘claiming their child back’ through the courts. This bothering question seems to have finally been answered by the Court of Appeal. In a decision, which Lord Justice Wilson said made him ‘profoundly uncomfortable’, the Court of Appeal has ruled that the adoption process is final. This means that children who are adopted after they have been removed from their biological parents cannot be returned to them, even if it is subsequently discovered that the parents were incorrectly accused of harming them. The case concerned a couple with four children. Three of the children were taken into care after suffering what were considered to be ‘non-accidental’ injuries. The children were adopted in 2004.

Evidence produced after this date indicated that the injuries sustained by the children were accidental, being consistent with the sort of injuries that would occur through normal parental handling of children suffering deficiencies of vitamin C and iron due to a diet based on soy milk rather than cow’s milk. Appeals to set aside the adoption orders, made several years after the adoptions took place, failed, even though the Court was of the view that the original orders placing the children in council care would be unlikely to succeed were the case to be heard again. The adoption process is final. Once legal adoption has taken place, the child is, in law, the child of the new parents. For this reason, giving up a child for adoption or adopting a child is a decision which has to be given thorough consideration.

Many adopting parents and adopted children across the United Kingdom have at least once asked themselves whether the process of adopting a child is final or whether there is a possibility that the biological parents could successfully reverse the new reality by ‘claiming their child back’ through the courts. This bothering question seems to have finally been answered by the Court of Appeal. In a decision, which Lord Justice Wilson said made him ‘profoundly uncomfortable’, the Court of Appeal has ruled that the adoption process is final. This means that children who are adopted after they have been removed from their biological parents cannot be returned to them, even if it is subsequently discovered that the parents were incorrectly accused of harming them. The case concerned a couple with four children. Three of the children were taken into care after suffering what were considered to be ‘non-accidental’ injuries. The children were adopted in 2004.

Evidence produced after this date indicated that the injuries sustained by the children were accidental, being consistent with the sort of injuries that would occur through normal parental handling of children suffering deficiencies of vitamin C and iron due to a diet based on soy milk rather than cow’s milk. Appeals to set aside the adoption orders, made several years after the adoptions took place, failed, even though the Court was of the view that the original orders placing the children in council care would be unlikely to succeed were the case to be heard again. The adoption process is final. Once legal adoption has taken place, the child is, in law, the child of the new parents. For this reason, giving up a child for adoption or adopting a child is a decision which has to be given thorough consideration.

Why would anyone need a social security lawyer? It may seem unnecessary, after all, once you hit retirement age, aren’t you entitled to your fair share of the pie? Well, that’s just a small portion of what social funds cover. Disability, temporary assistance, and unemployment benefits and more are covered under social security policy and are considerably more complicated to obtain. Many people spend years in courts fighting for what is essentially their right, and more often than not they lose if they aren’t prepared. Having a qualified social security lawyer can help assist you with getting what you rightfully deserve and helping you live a more comfortable life.

Disability

Winning a disability hearing seems deceptively simple, get a doctor’s note, present it to a judge-and success, you now receive financial assistance from the government. The truth of the matter is that most people spend years in legal battles trying to get approved for disability, and without the help of a lawyer their chances drop drastically. A lawyer can help you build a strong case, collect evidence, and provide research from qualified professionals. The process is not straightforward and can be very confusing for a layman. A lawyer can also help you appeal a denied disability claim or help get you on a different government program if you can’t qualify.

Temporary Assistance

For those in need or living at or below poverty level, temporary assistance is a government program that provides temporary funds to help out needy families. The conditions are short term only, but can greatly help a family that is struggling to put food on the table and make ends meet. A attorney can help you build a case, providing compelling evidence and finding solutions for individuals to meet the requirements of the program. This can mean the difference between keeping your family together or ending up on the streets.

Unemployment Benefits

If you have recently found yourself out of work and are getting nowhere at the unemployment office, a social security lawyer can help you claim your rights. Or perhaps you need an extension and are continually denied. Social security lawyers can help you get your unemployment check so you can work on getting back on your feet again.

Why is it important to win your case? Without a skilled social security lawyer on your side, you might find yourself faced with homelessness, no medical care, or no way to care for your loved ones. Social security lawyers can also help assist survivors and claim death benefits such as life or casualty insurance, death benefits, due salaries (including severance packages, vacation and sick leave, outstanding payments), and when applicable to the state, crime statue payments. Minors are also entitled to benefits and payments. Don’t lose out what rightfully belongs to you or your family. Hire a qualified lawyer to help you build a strong case.

Picture this: An industry that commands high profits and highly loyal customers is growing at the rate of $20 billion a year but has a persistent problem eating into its profits, a problem which it has no legal defense against. The highly lucrative perfume industry faces constant encroachment from smell-alikes. A smell-alike is a copy of a perfume that is similar to the original but sold at a lower price. This intrusion is making the perfume industry fight hard to protect its market from the copycats.

How Do They Get Away?

A perfume’s fragrance is very subjective and subtle. It is made up of three sub-elements called notes. The top note is the first whiff or impression that the user gets from the perfume; the middle note is the fragrance that emerges when the top note is wearing off before the bottom note is yet to emerge; and the bottom note is the base scent pervading the whole perfume. To further complicate matters, these notes could last for differing periods of time and are also strongly affected by the wearer’s skin. The things that make a fragrance unique also make them intangible and unpredictable and virtually impossible to trademark.

Basically, perfume creation is the application of technical knowledge of aromatic ingredients mixed in different combinations to produce favorable results. The procedure is relatively simple, but the trick lies in getting the combinations right. Once the correct combination is achieved, it becomes simple to reproduce. Unfortunately, chemical analysis can easily reveal the composition of a perfume making; it is easy to copy. Smell-alikes often do not need to even copy all the ingredients of the original perfume to achieve very similar results.

A fragrance’s subjective and subtle nature, coupled with the relative ease of reverse engineering, makes it easy for originals to be copied without large investments in research. The original creator could spend millions on R & D, branding, and marketing to build up goodwill and a reputation only to have it encroached upon by a smell-alike.

Besides copying the fragrance, smell-alikes often use similar bottle shapes, colors, and packaging to make the copy as close to the original as possible-just enough to skirt the law and yet sufficient to suggest a strong resemblance to the original. Producers of luxury and premium perfumes are particularly hard hit by these copycats.

Where Is the Law?

Different countries have different laws regarding protection of perfumes and the permissibility of smell-alikes. What is more or less universal is that it is not illegal to produce or distribute smell-alikes. As perfumes are made through the application of technical knowledge and mixing of chemicals in correct proportions, they are not treated as a tangible form of expression and hence cannot claim copyright protection. Instead, countries usually solve disputes between the perfume creator and the copycats by assessing such cases for trademark infringement or unfair comparative advertising.

Primarily because of a fragrance’s highly subjective nature, it cannot be trademarked. Instead, perfume manufactures protect their products by registering the distinctive packaging of their products (viz. trade dress) or unique design elements, like color, applicator, bottle shape, etc., (product configuration) as their trademarks. These are significantly more tangible manifestations of a product’s uniqueness and hence disputes are usually taken to court for trademark infringement. In the United States, scents and fragrances do not enjoy intellectual property protection. Instead, creators have to use the trademark or the trade dress route to protect their creations. That is why U.S. companies prefer to channel most of their marketing budgets and effort into establishing their perfume’s identity and image while the actual fragrance is given less importance.

Comparative advertising is also allowed in most countries, though with differing amounts of regulation. This is a thin line to walk: As long as a competitor can show that the comparison is to help the consumer make a better choice, it is allowed. When the same advertising crosses over to take advantage of the reputation of the original and usually more established company, it can be disputed in court. European laws are more explicitly worded and thereby more stringent when dealing with such cases. U.S. trademark law is more permissive with regards to comparative advertising. Broadly speaking, when such comparisons are clear and do not cause any confusion about the identity of the products and do not suggest that the trademark holder approves of the other product, it is seen as fair use. As long as the advertising is not deceptive, it is encouraged as it helps consumers make better choices, induces product improvement, and helps lower prices.

Laws pertaining to the perfume industry are still evolving, and companies find it very hard to protect their market. Given below are some recent examples of disputes and their verdicts, which highlight the complexities involved.

L’Oreal v. Bellure (2010)

In May 2010, European trademark law felt ripples of change when England’s Court of Appeals upheld the cosmetic giant L’Oreal’s complaint against Bellure’s use of certain words on lists comparing their respective perfumes. This was construed as trademark infringement, and Bellure was free riding on the reputation and goodwill garnered by the better known company. This judgment implies that now the law recognizes the marketing and monetary efforts made by a company to create and maintain its trademark.

Though the verdict was in L’Oreal’s favor, one of the three judges had his reservations. He felt that the average customer was smart enough to recognize the difference between the original and the smell-alike and would know that both differ in quality. In his view, the cheaper smell-alikes allowed more sections of society access to premium fragrances. He, however, also felt that the very same low pricing could harm the premium product if those who could afford the original bought the smell-alike. The judge also feared for the principles of free trade and free speech. As most verdicts set precedents with wider ramifications, there is a possibility of this verdict affecting other industries, such as generic drug manufacturers who usually advertise their products as identical to those sold under a trademarked name.

L’Oreal v. Bellure (2006)

2010 brought partial relief for French perfume manufacturers from the incessant problem of encroachers when a French appeals court ruled in L’Oreal v. Bellure (2006) that perfumes enjoyed French authorial rights to protect them from imitation for a period of 70 years. By using chemical analysis, L’Oreal proved that the Bellure smell-alike had an almost exact match of ingredients with its own perfumes. However, a higher court subsequently overruled this verdict, ruling that a perfume’s fragrance cannot be copyright protected.

Lancome v. Kecofa (2006)

Though there are conflicting views and laws regarding copyright protection and perfumes, some progress has been made, as evidenced by the Dutch case Lancome v. Kecofa (2006). When Kecofa copied 24 of Lancome’s 26 ingredients to make their perfume, it was judged as copyright infringement. Though the fragrance was still deemed to be too subtle to be protected under copyright law, it was the liquid medium carrying the fragrance that was awarded protection under Dutch law.

Abercrombie & Fitch

Abercrombie & Fitch, creators of Fierce, were quick to take action in 2009 to protect their signature scent from the pop diva Beyonce Knowles. She had proposed naming her yet-to-be launched perfume after her album, Sasha Fierce. As unlikely as it was that the two fragrances would be similar, one being packaged and targeted at men, while the other at women, it was the infringement on the registered name that allowed Abercrombie & Fitch to preemptively move to protect their product.

Preventive Measures

BanningPolicies

Some online selling sites have policies banning sale of testers and samples of perfumes and cosmetics. Smell-alike perfumes that compare themselves to branded items are restricted as are perfumes that are not in their original bottles. Imitations are not allowed.

The Unique Production Code

The unique production code is a numeric batch code assigned to each product unit to permit the producer to trace and resolve quality issues. This system is important to prevent counterfeits, assure quality, and to protect against theft.

This system is also useful in tracking down grey-market goods. These products are registered in the U.S., legally produced abroad, purchased legally from authorized distributors abroad, and then imported without the trademark holder’s knowledge or permission.

Evolving Laws

In 2009, the E.U. introduced a single regulation with respect to the E.U. Cosmetic Directive of 1976. This will apply to all member states simultaneously. This development increases the manufacturer’s responsibility, fortifies market surveillance, and establishes clearer guidelines to reduce administrative and litigation costs.

Distinctive Trademark Protection

As most laws are more clearly worded on issues regarding trademarks, it would help producers guard their markets by registering products and packaging that are distinctive, unique, and easily distinguishable. The closer the association of a product with its registered trademark, the better the chance of safeguarding it.

Different countries have different laws regarding trademarks and their infringement, permissible competition, and comparative advertising. It is most advisable for both, debutant perfume manufacturers as well as smell-alike producers, to get expert legal help with trademark registration and comparative advertising before venturing into production or distribution of perfumes.

The first question to ask is whether the landlord is entitled to sue the tenant via a subrogated claim using the landlord’s name. In Mark Rowlands Ltd. v. Berni Inns Ltd. (1986) the Court of Appeal decided that the landlord had insured the premises for the joint benefit of himself and the tenant, even though the tenant was not named on the policy. He did, however, contribute to the premium, and the landlord’s claim failed.

The Court of Appeal held that the lease made it clear that it was the mutual intention of the parties that insurance would be for the benefit of both the landlord and the tenant, and the landlord was obliged to insure and use any monies received from insurers in rebuilding the premises. If, therefore, the tenant in our example contributed to the landlord’s insurance policy, then the landlord’s insurers will not be able to sue him. If he did not, then they will be able to sue him in contract under the lease.

Let us assume that the landlord’s insurers are not entitled to sue the tenant (because he is an insured party) but must pursue remedies against other parties. Of course, the tenant will be obliged to lend his name to the insurer to enable him to conduct any litigation, because he is effectively an insured party under the policy. The insurers, landlord and tenant will also have to agree the funding of the litigation, the allocation of any proceeds and how (and by whom) the litigation is to be pursued.

Los Angeles corporate litigation lawyers will tell you that one of the most often used concepts in California business litigation is that of alter ego. Alter ego is an attempt by a litigant to get past the protections of a corporate entity. In lawsuits regarding small corporations the phrase “pierce the corporate veil” is used to describe an attempt to disregard the corporate protections to go after the founder of the corporation personally. In larger corporate litigation alter ego is also used go after a corporate subsidiary’s larger corporate owner. In general the idea of alter ego is to disregard a corporate entity in order to get to the real money.

In the eyes of the law a corporation is a separate entity. With larger, more established corporations, a judgment against the corporation may be easily collectible. However, in smaller corporations, including family-owned businesses, the profits of the corporation may be distributed to the shareholders, leaving the corporation without any real assets or money. An attorney who gets a judgment against a small family-owned may have no way to collect, even though the founder is personally very wealthy.

The general rule is that before a corporation’s acts and obligations can be legally recognized as those of a particular person, and vice versa, the trial lawyer must make it appear that the corporation is not only influenced and governed by that person, but that there is such a unity of interest and ownership that the individuality, or separateness, of such person and the corporation has ceased. The california court of appeals, in affirming alter ego cases, often explains that in the case at hand the adherence to the fiction of the separate existence of the corporation would sanction a fraud or promote injustice.

It is not enough for a trial attorney to merely show that a creditor will remain unsatisfied if the corporate veil is not pierced. There must be some conduct amounting to bad faith that makes it inequitable for the equitable owner of a corporation to hide behind its corporate veil.

The court will look at a number of factors in determining alter ego. The domination of ownership and control of the corporation by certain individuals is one factor but not in isolation. The mere existence of a closely held corporation, for example, is not enough to establish domination. Instead, the individual shareholders must generally have treated corporate assets as their own and disregarded the separate nature of the corporate entity.

The trial court will look at the commingling of funds and other assets of the two entities (or the entity and the individual). Does the corporation pay the personal debts of the individual shareholder? Does the individual shareholder use the corporate bank account as his own personal bank account? Does one entity (or the individual) hold itself out as liable for the debts of the other? Is there identical ownership in the two entities? If two entities, do they use the same offices and employees? Is the one subsidiary or related corporation a mere shell or conduit for the affairs of the other corporation?

Other factors that have been described in the case law include inadequate capitalization, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers. No one characteristic governs, but the court must look at all the circumstances to determine whether the doctrine should be applied.

Overall, alter ego is meant as a drastic remedy and, theoretically, sparingly used. Unless some wrong directly results from recognizing the separateness of the corporate entity, the alter ego doctrine cannot be used. Because society recognizes the benefits of allowing persons and organizations to limit their business risks through incorporation, sound public policy dictates that imposition of alter ego liability be approached with caution. Corporate veils exist for a reason and should be pierced only reluctantly and cautiously. The law permits the incorporation of businesses for the very purpose of isolating liabilities among separate entities.

If your business is engaged in commercial litigation and facing allegations of alter ego, your attorney should do an analysis of these factors to determine whether you as an individual are at risk of personal liability for the corporation’s debts. If you are a plaintiff pursuing a shell corporation, your lawyer should look to see if there are potential alter ego individuals or corporations whom you can pursue.