https://www.richardsbrandt.com/wp-content/uploads/2020/08/LA2L7IUP6JC5HNKC5JVW4AQNGM-1.jpg600886RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2020-08-17 12:12:512021-11-03 14:57:37Congrats to RBMN’s Adam Affleck and his clients for winning one for the ‘little guy.’
Jon Parry practices in the areas of estate planning and administration, business law, and business succession planning.
Adam Affleck’s practice focuses on trial and appellate work involving bankruptcy, real estate, contracts, secured transaction, fraud, trade regulation and anti-trust.
We are honored to have these seasoned attorneys be part of the Firm.
https://www.richardsbrandt.com/wp-content/uploads/2019/07/shakinghands.jpg522960RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2019-07-19 15:04:542021-11-03 15:21:39Richards Brandt Welcomes Attorneys Jonathon Parry and Adam Affleck
One procedural issue parties occasionally face in civil litigation is the requirement to make an election of remedies. In its most basic terms, the election of remedies doctrine prevents double redress for a single wrong and avoids legally or factually inconsistent recoveries for the same wrong. There may be a claim alleged in your case that could lead to multiple, inconsistent remedies, and if so the party making that claim will need to make an election of remedies. One Utah case described it this way: “If a defendant wrongfully retains possession of a plaintiff’s cow, for example, the plaintiff may not recover both the cow and the reasonable value of the cow. The plaintiff must elect one of these two remedies.”
This issue often arises in business and commercial litigation where a plaintiff claims there was mutual mistake or some form of misrepresentation when a contract was entered. If so, the plaintiff may pursue the remedy of damages for breach of contract or may seek rescission of the contract. But ultimately, the plaintiff cannot be awarded both of these remedies.
One important question is when the election must be made. Utah’s modern pleading rules permit litigants to plead inconsistent theories of recovery in the alternative. Contrary to the harsh rule in older case law, current Utah law permits a party to pursue inconsistent remedies until the fact-finder and the judge have resolved all factual and legal disputes related to the inconsistent theories of liability. Thus, an election of remedies is not binding until one remedy is pursued to a determinative conclusion.
If your case involves a claim that supports multiple, inconsistent remedies, it is important to identify those potential remedies early on, evaluate the merits of all available remedies, and be mindful of the need, ultimately, to make an election between them.
Matthew Barneck is a shareholder at the Salt Lake City law firm of Richards Brandt Miller Nelson. He can be reached at Matthew-Barneck@rbmn.com, 801-531-2000.
https://www.richardsbrandt.com/wp-content/uploads/2019/07/election_of_remedies.jpg307625RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2019-07-19 14:58:092021-11-02 14:36:47The Doctrine of Election of Remedies in Utah
Based on information contained in the Department of Commerce’s most recent annual report, there are currently more than 300,000 businesses operating in Utah, with approximately 60,000 new business filings each year. For the past decade, the most common form of new entity in Utah has been the limited liability company. The next most common is a DBA registration of a fictitious business name, followed by the corporation. Each of these new entities brings the promise of a new business venture, new ideas, new jobs, and potential success.
Although the overall number of businesses in Utah has been growing, the Department’s annual report suggests that on an annual basis, more 40,000 businesses either fail to file an annual report or dissolve. For the principals of these 40,000-plus businesses, the failure to file an annual report or the dissolution of the business triggers potential issues that if not managed properly can have adverse effects on the shareholders, members, directors, officers, and managers of these businesses.
Failing to file an annual report can eventually lead to administrative dissolution of a corporation or limited liability company. Once a corporation or limited liability company is administratively dissolved, any action taken by the directors, officers, or managers that is not related to the winding up of the entity can result in the personal liability of the acting director, officer, or manager.
Similarly, in those instances where the shareholders or members of a corporation or limited liability company elect to dissolve, or a court orders the dissolution of the entity, properly dissolving and winding up the entity can make the difference between the principals still enjoying some or all of the available liability protection after the entity is wound up and those same principals being exposed to personal liability for the debts of and claims against the entity. This is not a theoretical risk, as Utah Courts have found directors, officers, and managers of dissolved entities personally liable for actions taken after dissolution. In these instances, the director, officer, or manager who was found liable could have avoided that liability by complying with the annual reporting requirements under the Utah Revised Business Corporations Act or the Utah Revised Uniform Limited Liability Company Act or by following the dissolution and winding up procedures under those acts.
For example, when the dissolution and winding up process is in accordance with the provisions of the Utah Revised Business Corporations Act, officers are generally protected from post-dissolution liability, and shareholders can only be held liable for company debts and claims up to the amount they received in monetary distributions from the winding up process. Conversely, not following the procedures (for example, by distributing corporate property other than money), can expose the receiving shareholder to liability in excess of the limits set forth in the Utah Revised Business Corporations Act. Similar rules apply to limited liability companies wound up under the Utah Revised Uniform Limited Liability Company Act.
Another important part of the winding up process is the management of claims against the entity. Following the procedures under either act can lead to the early and final resolution of claims against the entity. Not following those procedures can result in claims against the entity. Furthermore, the former shareholders or members may also be exposed to liability for extended periods–up to seven years in the case of corporations and six years in the case of limited liability companies.
The attorneys in Richards Brandt’s Business Transactions and Corporate Governance and Business and Commercial Litigation practice groups know and understand the statutes, rules, and regulations that apply to corporations and limited liability companies. If you have a corporate or company governance issue, or are in the process of or soon will be dissolving and winding up a corporation or limited liability company, contact one of the attorneys in RBMN’s Business Transactions and Corporate Governance or Business and Commercial Litigation practice groups.
https://www.richardsbrandt.com/wp-content/uploads/2019/04/avoid2.jpg545725RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2019-04-26 15:07:112021-11-03 14:50:46Avoiding dissolution pitfalls and protecting against post-dissolution liability for company debts and claims
At the 5th Annual Intermountain Construction Defect & Dispute Conference held on February 8, 2019, the Utah chapter of Advise & Consult awarded Craig Coburn with its Lifetime Achievement Award for Craig’s contributions in construction law. Richards Brandt congratulates Craig for this much deserved award honoring him for his level of excellence and longtime service in the field of construction law.
https://www.richardsbrandt.com/wp-content/uploads/2019/03/Cogburn.jpg393724RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2019-03-22 09:09:332021-09-09 13:27:13Craig Coburn Receives Lifetime Achievement Award
Gary Johnson has been selected as this year’s DRI recipient of the G. Duffield Smith Outstanding Publication Award. This award honors the author of the most outstanding defense related article published in For The Defense or In-House Defense Quarterly in 2017. His article «Planning the Future: Blockchain Technology and the Insurance Industry published in the In-House Defense Quarterly Fall 2017 issue, has achieved this highest standard.
The award will be presented at «A Celebration of Leadership» at the 2018 DRI Annual Meeting in San Francisco, California.
Richards Brandt congratulates Gary on his remarkable achievement.
https://www.richardsbrandt.com/wp-content/uploads/2018/08/GLJ-DRI.jpg244450RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2018-08-14 15:43:232021-11-03 15:13:42Gary Johnson Receives G. Duffield Smith Outstanding Publication Award
For decades, the golden rule – that is, ‘he who has the gold rules” – was the name of the game in design and construction contracting. Under the rule, project owners pushed risks, usually on a take-it-or-leave-it basis, onto prime contractors who, in turn, pushed them onto subcontractors, even though no one
in this contracting scheme was in a better position to manage that risk than anyone else. The ‘go-to’ provisions in this regard were the so-called ‘indemnity’ provisions.
In 1997, Utah subcontractors found some measure of relief from these provisions with passage of Utah Code Ann. 13-8-1. Under 13-8-1, subcontracts could
no longer require subcontractors to hold harmless, indemnify and defend their customer (e.g., a prime contractor) against claims resulting from the customer’s own fault. Still, because a construction team collectively controls a job site, these types of provisions remain permissible in the owner-prime contract to properly allocate responsibility for job-site risks.
Similar provisions having different import have long been the norm in design professional contracts as well – similar
in that the provisions transferred risk to design professionals that they could not control, but different in that the provisions created insurability issues that arose only under professional liability policies, not contractor/ subcontractor commercial general liability policies. In short (and
with more than a touch of irony), a design professional contract’s indemnity provision often compromised the professional liability insurance required elsewhere in the same contract. Still other provisions in design professional contracts purported to raise the standard of care for design professionals above that required under Utah law and, arguably, to a unattainable level.
For several years, we at Richards Brandt Miller Nelson (RBMN) had suggested that design professions consider running a bill to address these concerns. In 2017, ACEC Utah and AIA Utah took RBMN up on its suggestion and RBMN drafted and, in 2018, helped these associations secure passage of HB 279. Slated to be codiied at Utah Code Ann. §13-8-7, HB 279 will alleviate much of what has concerned design professionals working in the public sector for generations and has only gotten worse in the last few years.
What Does Utah Code Ann. §13-8-7 Do?
• Applies to public-sector ‘design professional services contracts’ – deined as contracts tah governmental entity or for an improvement to real property owned or to be owned by a Utah government entity – entered into on or after May 8, 2018.
• Prohibits and voids, as against public policy, provisions in these contracts that:
• require a design professional to hold harmless or indemnify anyone for injuries or losses except to the extent caused by the design professional or those for whom the design professional is legally liable;
• require a design professional to defend anyone for injuries or losses allegedly caused by a design professional’s alleged breach or fault; or
• impose a professional standard of care other than Utah’s common law standard – that is, same/similar licensure, locality, services and timeframe – except
where the project reasonably requires specialized expertise.
What Utah Code Ann. §13-8-7 Does Not Do
• Does not apply to private-sector design professional services contracts;
• Does not apply to a ‘construction contract’ as deined in Utah Code
Ann. §13-8-1, which would may include contracts between a design-builder and a design professional;
• Does not prohibit indemnity provisions that require a design professional to reimburse its client for costs incurred defending against claims for injuries
or losses to the extent caused by the design professional or those for whom the design professional is legally liable; and
• Does not lower the professional standard of care for design professionals.
In short, going forward §13-8-7 levels
the public-sector playing ield for design professionals by prohibiting provisions which inappropriately transfer risk that the design professional can’t control, which compromise design professional liability coverage or which raise the bar on design professional performance to inappropriate levels.
As for design professional contracts not covered by §13-8-7 – that is, design professional service contracts in the private sector or with design-build contractors
– design professionals should closely scrutinize their contracts to ensure, inter alia, that they can control the risks they are being asked to take, that the contract does not compromise the design professional’s insurance and that their services are judged by an appropriate standard of care. And lest there be any doubt in this regard, design professionals would do well to remember that their contracts are the single most- effective risk management tool they have. n
Craig Coburn and Lincoln Harris are shareholders at RBMN where a main focus of both their practices is counseling and representation of design and other industry professionals on business and professional risk management, claims prosecution and defense and dispute resolution. They can be reached at (801) 531-2000 or https://www.richardsbrandt.com/practice-areas/construction-industry/.
https://www.richardsbrandt.com/wp-content/uploads/2018/06/Screen-Shot-2018-06-29-at-11.31.09-AM.png556791RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2018-06-29 11:12:272021-11-02 15:12:59Leveling the Playing Field
Richards Brandt Miller and Nelson congratulates Barbara Melendez, Shareholder and Immigration Practice Chair, who has been selected as one of Utah Business 30 Women to Watch. Richards Brandt is honored to be associated with Barbara who is a highly respected and valued member of the firm. Barbara’s dedication, expertise and experience are invaluable assets to the firm and the community. We are proud of her outstanding achievements and contributions to Richards Brandt Miller Nelson and the legal community.
https://www.richardsbrandt.com/wp-content/uploads/2015/01/Thumb-Barbara-Melendez-e1530306305708.jpg200200RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2018-06-14 16:15:252021-11-03 15:07:07Barbara Melendez Selected as One of 30 Women to Watch by Utah Business Magazine
Congrats to RBMN’s Adam Affleck and his clients for winning one for the ‘little guy.’
Click for full story
Richards Brandt Welcomes Attorneys Jonathon Parry and Adam Affleck
Jon Parry practices in the areas of estate planning and administration, business law, and business succession planning.
Adam Affleck’s practice focuses on trial and appellate work involving bankruptcy, real estate, contracts, secured transaction, fraud, trade regulation and anti-trust.
We are honored to have these seasoned attorneys be part of the Firm.
The Doctrine of Election of Remedies in Utah
July 2019
One procedural issue parties occasionally face in civil litigation is the requirement to make an election of remedies. In its most basic terms, the election of remedies doctrine prevents double redress for a single wrong and avoids legally or factually inconsistent recoveries for the same wrong. There may be a claim alleged in your case that could lead to multiple, inconsistent remedies, and if so the party making that claim will need to make an election of remedies. One Utah case described it this way: “If a defendant wrongfully retains possession of a plaintiff’s cow, for example, the plaintiff may not recover both the cow and the reasonable value of the cow. The plaintiff must elect one of these two remedies.”
This issue often arises in business and commercial litigation where a plaintiff claims there was mutual mistake or some form of misrepresentation when a contract was entered. If so, the plaintiff may pursue the remedy of damages for breach of contract or may seek rescission of the contract. But ultimately, the plaintiff cannot be awarded both of these remedies.
One important question is when the election must be made. Utah’s modern pleading rules permit litigants to plead inconsistent theories of recovery in the alternative. Contrary to the harsh rule in older case law, current Utah law permits a party to pursue inconsistent remedies until the fact-finder and the judge have resolved all factual and legal disputes related to the inconsistent theories of liability. Thus, an election of remedies is not binding until one remedy is pursued to a determinative conclusion.
If your case involves a claim that supports multiple, inconsistent remedies, it is important to identify those potential remedies early on, evaluate the merits of all available remedies, and be mindful of the need, ultimately, to make an election between them.
Matthew Barneck is a shareholder at the Salt Lake City law firm of Richards Brandt Miller Nelson. He can be reached at Matthew-Barneck@rbmn.com, 801-531-2000.
Avoiding dissolution pitfalls and protecting against post-dissolution liability for company debts and claims
Steven H. Bergman
April 2019
Based on information contained in the Department of Commerce’s most recent annual report, there are currently more than 300,000 businesses operating in Utah, with approximately 60,000 new business filings each year. For the past decade, the most common form of new entity in Utah has been the limited liability company. The next most common is a DBA registration of a fictitious business name, followed by the corporation. Each of these new entities brings the promise of a new business venture, new ideas, new jobs, and potential success.
Although the overall number of businesses in Utah has been growing, the Department’s annual report suggests that on an annual basis, more 40,000 businesses either fail to file an annual report or dissolve. For the principals of these 40,000-plus businesses, the failure to file an annual report or the dissolution of the business triggers potential issues that if not managed properly can have adverse effects on the shareholders, members, directors, officers, and managers of these businesses.
Failing to file an annual report can eventually lead to administrative dissolution of a corporation or limited liability company. Once a corporation or limited liability company is administratively dissolved, any action taken by the directors, officers, or managers that is not related to the winding up of the entity can result in the personal liability of the acting director, officer, or manager.
Similarly, in those instances where the shareholders or members of a corporation or limited liability company elect to dissolve, or a court orders the dissolution of the entity, properly dissolving and winding up the entity can make the difference between the principals still enjoying some or all of the available liability protection after the entity is wound up and those same principals being exposed to personal liability for the debts of and claims against the entity. This is not a theoretical risk, as Utah Courts have found directors, officers, and managers of dissolved entities personally liable for actions taken after dissolution. In these instances, the director, officer, or manager who was found liable could have avoided that liability by complying with the annual reporting requirements under the Utah Revised Business Corporations Act or the Utah Revised Uniform Limited Liability Company Act or by following the dissolution and winding up procedures under those acts.
For example, when the dissolution and winding up process is in accordance with the provisions of the Utah Revised Business Corporations Act, officers are generally protected from post-dissolution liability, and shareholders can only be held liable for company debts and claims up to the amount they received in monetary distributions from the winding up process. Conversely, not following the procedures (for example, by distributing corporate property other than money), can expose the receiving shareholder to liability in excess of the limits set forth in the Utah Revised Business Corporations Act. Similar rules apply to limited liability companies wound up under the Utah Revised Uniform Limited Liability Company Act.
Another important part of the winding up process is the management of claims against the entity. Following the procedures under either act can lead to the early and final resolution of claims against the entity. Not following those procedures can result in claims against the entity. Furthermore, the former shareholders or members may also be exposed to liability for extended periods–up to seven years in the case of corporations and six years in the case of limited liability companies.
The attorneys in Richards Brandt’s Business Transactions and Corporate Governance and Business and Commercial Litigation practice groups know and understand the statutes, rules, and regulations that apply to corporations and limited liability companies. If you have a corporate or company governance issue, or are in the process of or soon will be dissolving and winding up a corporation or limited liability company, contact one of the attorneys in RBMN’s Business Transactions and Corporate Governance or Business and Commercial Litigation practice groups.
Richards Brandt Attorneys Named Utah Legal Elite 2019
March 2019
Richards Brandt is pleased to congratulate the following attorneys for being recognized as Legal Elite in Utah Business Magazine:
Civil Litigation: Bobby Wright, Rafael Seminario
Construction: Brian Bolinder, Craig Coburn, Lincoln Harris
Healthcare: Cortney Kochevar
Insurance: Gary Johnson
Intellectual Property: Barry Scholl
Workers’ Compensation: Mark Sumsion, David Tolk
Craig Coburn Receives Lifetime Achievement Award
At the 5th Annual Intermountain Construction Defect & Dispute Conference held on February 8, 2019, the Utah chapter of Advise & Consult awarded Craig Coburn with its Lifetime Achievement Award for Craig’s contributions in construction law. Richards Brandt congratulates Craig for this much deserved award honoring him for his level of excellence and longtime service in the field of construction law.
Gary Johnson Receives G. Duffield Smith Outstanding Publication Award
August 2018
Gary Johnson has been selected as this year’s DRI recipient of the G. Duffield Smith Outstanding Publication Award. This award honors the author of the most outstanding defense related article published in For The Defense or In-House Defense Quarterly in 2017. His article «Planning the Future: Blockchain Technology and the Insurance Industry published in the In-House Defense Quarterly Fall 2017 issue, has achieved this highest standard.
The award will be presented at «A Celebration of Leadership» at the 2018 DRI Annual Meeting in San Francisco, California.
Richards Brandt congratulates Gary on his remarkable achievement.
Read article here: https://www.richardsbrandt.com/wp-content/uploads/2017/10/16J1065-GLJ-BLOCKCHAIN-TECHNOLOGY_.pdf
Leveling the Playing Field
by Craig Coburn and Lincoln Harris
May 18 | UTAH CONSTRUCTION & DESIGN
For decades, the golden rule – that is, ‘he who has the gold rules” – was the name of the game in design and construction contracting. Under the rule, project owners pushed risks, usually on a take-it-or-leave-it basis, onto prime contractors who, in turn, pushed them onto subcontractors, even though no one
in this contracting scheme was in a better position to manage that risk than anyone else. The ‘go-to’ provisions in this regard were the so-called ‘indemnity’ provisions.
In 1997, Utah subcontractors found some measure of relief from these provisions with passage of Utah Code Ann. 13-8-1. Under 13-8-1, subcontracts could
no longer require subcontractors to hold harmless, indemnify and defend their customer (e.g., a prime contractor) against claims resulting from the customer’s own fault. Still, because a construction team collectively controls a job site, these types of provisions remain permissible in the owner-prime contract to properly allocate responsibility for job-site risks.
Similar provisions having different import have long been the norm in design professional contracts as well – similar
in that the provisions transferred risk to design professionals that they could not control, but different in that the provisions created insurability issues that arose only under professional liability policies, not contractor/ subcontractor commercial general liability policies. In short (and
with more than a touch of irony), a design professional contract’s indemnity provision often compromised the professional liability insurance required elsewhere in the same contract. Still other provisions in design professional contracts purported to raise the standard of care for design professionals above that required under Utah law and, arguably, to a unattainable level.
For several years, we at Richards Brandt Miller Nelson (RBMN) had suggested that design professions consider running a bill to address these concerns. In 2017, ACEC Utah and AIA Utah took RBMN up on its suggestion and RBMN drafted and, in 2018, helped these associations secure passage of HB 279. Slated to be codiied at Utah Code Ann. §13-8-7, HB 279 will alleviate much of what has concerned design professionals working in the public sector for generations and has only gotten worse in the last few years.
What Does Utah Code Ann. §13-8-7 Do?
• Applies to public-sector ‘design professional services contracts’ – deined as contracts tah governmental entity or for an improvement to real property owned or to be owned by a Utah government entity – entered into on or after May 8, 2018.
• Prohibits and voids, as against public policy, provisions in these contracts that:
• require a design professional to hold harmless or indemnify anyone for injuries or losses except to the extent caused by the design professional or those for whom the design professional is legally liable;
• require a design professional to defend anyone for injuries or losses allegedly caused by a design professional’s alleged breach or fault; or
• impose a professional standard of care other than Utah’s common law standard – that is, same/similar licensure, locality, services and timeframe – except
where the project reasonably requires specialized expertise.
What Utah Code Ann. §13-8-7 Does Not Do
• Does not apply to private-sector design professional services contracts;
• Does not apply to a ‘construction contract’ as deined in Utah Code
Ann. §13-8-1, which would may include contracts between a design-builder and a design professional;
• Does not prohibit indemnity provisions that require a design professional to reimburse its client for costs incurred defending against claims for injuries
or losses to the extent caused by the design professional or those for whom the design professional is legally liable; and
• Does not lower the professional standard of care for design professionals.
In short, going forward §13-8-7 levels
the public-sector playing ield for design professionals by prohibiting provisions which inappropriately transfer risk that the design professional can’t control, which compromise design professional liability coverage or which raise the bar on design professional performance to inappropriate levels.
As for design professional contracts not covered by §13-8-7 – that is, design professional service contracts in the private sector or with design-build contractors
– design professionals should closely scrutinize their contracts to ensure, inter alia, that they can control the risks they are being asked to take, that the contract does not compromise the design professional’s insurance and that their services are judged by an appropriate standard of care. And lest there be any doubt in this regard, design professionals would do well to remember that their contracts are the single most- effective risk management tool they have. n
Craig Coburn and Lincoln Harris are shareholders at RBMN where a main focus of both their practices is counseling and representation of design and other industry professionals on business and professional risk management, claims prosecution and defense and dispute resolution. They can be reached at (801) 531-2000 or https://www.richardsbrandt.com/practice-areas/construction-industry/.
by Craig Coburn and Lincoln Harris
May 18 | UTAH CONSTRUCTION & DESIGN
Barbara Melendez Selected as One of 30 Women to Watch by Utah Business Magazine
June 2018
Barbara Melendez
Richards Brandt Miller and Nelson congratulates Barbara Melendez, Shareholder and Immigration Practice Chair, who has been selected as one of Utah Business 30 Women to Watch. Richards Brandt is honored to be associated with Barbara who is a highly respected and valued member of the firm. Barbara’s dedication, expertise and experience are invaluable assets to the firm and the community. We are proud of her outstanding achievements and contributions to Richards Brandt Miller Nelson and the legal community.
Law Is Stranger Than Fiction | Episode 13 Outsider
good afternoon and welcome to another
00:08
edition of law is stranger than fiction
00:10
I’m one of your co-hosts Steven Bergman
00:12
and I’m your other co-host Barry Shoal
00:15
and we are shareholders at the law firm
00:16
of Richard’s Brant Miller Nelson today’s
00:19
episode takes us back into the realm of
00:21
trademark law where there’s another
00:23
battle brewing over the use of what
00:25
would seem to be a common word Berry yes
00:28
indeed there is a battle brewing over
00:29
the term Outsider utah-based apparel
00:32
company Cool has obtained a trademark in
00:36
the term outsider for certain apparel
00:38
items it has sued industry giant LL Bean
00:43
for its advertising campaign be an
00:46
outsider let me stop you for a
00:49
second so Cool obtained a trademark on
00:52
the word outsider yes for particular
00:55
items of apparel okay so they don’t have
00:57
a general right to the word outsider
00:59
they have it too for example describing
01:01
one of their products for a line of
01:04
outdoor wear yes okay so cool is suing
01:08
LL Bean for trademark infringement
01:10
notwithstanding the fact that LL Bean
01:13
does not carry products manufactured by
01:16
Cool in its stores and they’re suing
01:18
them for using the word outsider yes
01:20
even though they’re not are they
01:23
describing any of their own products as
01:25
outsider products I believe this is more
01:28
of a general campaign encouraging
01:30
consumers to be an outsider by attiring
01:35
themselves in outdoor ware from LL Bean
01:39
Cool is claiming that they might suffer
01:42
financial damage if consumers are
01:44
confused about the source of the
01:45
products based on the outsider campaign
01:47
so Cool is claiming that because LL Bean
01:51
is promoting the use of its outdoor wear
01:55
by saying be an outsider that people
01:57
will be confused as to where to buy
01:59
Cools outsider brand of products and
02:03
that cool owns all rights in the term
02:05
outsider with regard to outdoor apparel
02:07
but now has LL Bean actually used
02:10
the word outsider to describe any of their
02:13
products only I believe in its in-store
02:15
displays okay so in other words wear
02:18
this and
02:18
go outside type of thing wear this so
02:20
you can be an outsider but they’re not
02:22
saying for example buy LL Bean’s outsider
02:25
pants or outsider shirts or
02:26
anything like that correct
02:27
okay and when was this lawsuit filed in
02:31
October of last year and does this
02:35
lawsuit have anything to do with the fact
02:36
that LL Bean is planning to open its
02:38
first store in the state of Utah well
02:40
one wonders only because the
02:43
inaugural LL Bean store will be located
02:46
right down the street from Cool’s
02:48
flagship store in Park City okay
02:50
does Cool have any kind of history of
02:52
aggressively protecting its trademarks
02:55
as a matter of fact yes it’s sued Yeager
02:57
over the use of an advertising campaign
03:00
that urged its consumers to have a Cool
03:05
spot cool as you might know is German
03:08
for the word cool or neat so cool
03:15
the clothing manufacturer is claiming
03:17
that there may be consumer confusion
03:20
resulting from Yeager’s advertising
03:23
campaign as well okay and it’s my
03:25
understanding in trademark law and I
03:27
know you do a lot more trademark law
03:28
than I do that you have to be aggressive
03:31
in protecting your trademarks or trade
03:33
names otherwise you’re at risk of losing
03:35
them is that right that’s correct so one
03:37
could say that in this instance Cool is
03:39
simply protecting its rights by being so
03:41
aggressive couldn’t they one could say
03:43
that okay
03:45
well that’s it for today’s story as I
03:47
mentioned that Barry is an expert in
03:49
trademark and copyright law if you have
03:51
any issues concerning those areas please
03:54
contact Barry or if you have a litigation matter
03:56
concerning trademarks of copyrights
03:58
please contact me and for now this is
04:00
another edition of law is stranger than
04:03
fiction