MEAL AND REST PERIODS FOR NONEXEMPT EMPLOYEES
Our small and medium size business clients often have questions relating to their employment practices. When relevant California or Federal laws change or are clarified, we want our clients to be informed.
A recent California case brought some clarity in the areas of meal and rest periods. (Brinker Restaurant Corp. v. Superior Court L 1216356, 14 -24 (Cal., 2012).
SUMMARY PRACTICE POINTS:
1. Bona fide relief from duty and the relinquishing of control satisfies the employer's meal break obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under applicable law. In other words, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Of course, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.
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Over the years we have handled various trademark issues and, therefore, thought it might be helpful to share some trademark fundamentals.
1. What is a trademark?
A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller's products and distinguish them from the products of another. (15 U.S.C. section 1127). For example, the trademark "Nike," along with the Nike "swoosh," identify the shoes made by Nike and distinguish them from shoes made by other companies (e.g. Reebok or Adidas). Similarly, the trademark "Coca-Cola" distinguishes the brown-colored soda water of one particular manufacturer from the brown-colored soda of another (e.g. Pepsi). When such marks are used to identify services (e.g. "Jiffy Lube") rather than products, they are called service marks, although they are generally treated just the same as trademarks.
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It has been a popular tactic across the country, with all the foreclosures of trust deeds, which have been assigned multiple times, for borrowers and/or junior lien holders to try and thwart a non-judicial foreclosure sale by claiming that “no foreclosure of a deed of trust is valid unless the beneficiary is in possession of the original underlying promissory note.” Any assignees of the original note and deed of trust do not possess the original note. Without such possession, some argue, the deed of trust is allegedly “severed” from the promissory note and consequently is of no effect. Some have also tried to rely on the Commercial Code claiming that because a promissory note is a negotiable instrument, it can only be assigned with a valid endorsement and physical delivery to the assignee; again, the foreclosing party allegedly needs the original note.
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We often are asked by one family member, who may a beneficiary of a parent’s trust (or will), what rights does that family member have when Mom or Dad is still alive and another family member has a power of attorney and/or is the trustee of the surviving parent’s trust. This usually arises because one family member may be suspicious of another family member’s management of the parents’ affairs and the “manager” may be less than forthcoming. While Mom or Dad is still alive (but the estate is managed by a trustee or via a power of attorney), are sibling beneficiaries entitled to demand an account of, and other financial information about, their parents’ estate’s assets and/or the management of same?
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Issue Presented:
I often get questions from my business owner clients about the kinds of descriptions or adjectives that are permissible to describe their product in advertisements. Can they say this product is the “best in the world,” for example. Can they say their product is “faster” or “more powerful” or “more innovative” than their competitors? Can they assert their product is “superior” or “the most advanced in the universe?”
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