Nasir and Matt kick off the week by talking about the newly introduced legislation that will require California employers to give all employees paid sick leave. They then answer the question, "Can someone claim trademark infringement if my name is similar to theirs but I pronounce it differently?"
NASIR: Welcome to Legally Sound Smart Business. This is your host and co-host, Nasir Pasha.
MATT: And your other co-host, Matt Staub
NASIR: Yes, and welcome to our business legal podcast where we cover business in the news and also answer some of your business legal questions that you, the listener, can send in to firstname.lastname@example.org and don’t forget to follow us on Twitter at @askbizlaw. Just follow us there and you can also ask your questions there.
MATT: It’s the Monday following the first weekend of the NFL which I know you actually watch from time to time.
NASIR: Yeah, I missed the Thursday night games but I do plan on catching the Sunday games that have already occurred by the time of this listening.
MATT: We should have some sort of side proposition where I’ll take San Diego even though I’m not really a Chargers fan but I’ll take San Diego and you can take the Texans and we’ll see who gets more wins.
NASIR: Neither of them had a good season last year but I’ll watch the Chargers game tonight – or Monday night, I should say.
MATT: Oh, yeah, I forgot it is on Monday night. This will be airing the day of.
NASIR: I am a Chargers fan. Speaking of the Chargers, San Diego, huh? And California, doing some crazy stuff with paid sick leave.
MATT: I should probably be the one that sticks to the tie-ins but that’s okay.
NASIR: I know.
MATT: But, yeah, this is pretty big. I mean, we typically don’t talk about these sort of things unless they’re really big and they’re going to have a big effect. This is going to have a big effect.
MATT: But the actual number of sick days that people are going to get isn’t that many but it is going to have a huge effect for employers. Basically, starting July 1st 2015, employees in California are going to be entitled to up to three paid sick days per year. And so, I believe it can start accruing now, right?
NASIR: Oh, that’s a good question – whether it starts accruing. I’m not even sure. I didn’t even think it would. I thought the law doesn’t go into effect until next year.
MATT: I thought I read that it starts accruing some time this year but I guess I said it wasn’t a huge effect necessarily but, you know, looking at the stats, 44 percent – this basically is going to affect 44 percent of employees in California. I guess those are the ones who are not getting this paid sick leave. Let’s think about the number of employees in the state and 44 percent of them. That’s a huge number overall.
NASIR: Yeah, absolutely. I mean, this is actually pretty huge to make it a state-wide law. I think there is one other state, I think it’s Connecticut, that would be the other state that has a state-wide sick leave and I mentioned San Diego because they just passed their own which was back this last summer and I think that paid sick leave goes into effect April 2015 – a little bit earlier – but I think their sick leave Is not dissimilar to this. I think it’s the same amount of accrual. I think there’s a different cap on it but, other than that, it’s very, very similar and, just to mention it, that was also the same provisions that also increase the minimum wage in San Diego above the state minimum wage starting January 1st in 2015 to $9.75. This is pretty big, I think. I think this is, again, another trend that will go across from California to other states as well – Connecticut being the first and San Francisco and other cities have already had local laws for that but I can really see this spreading to other states as well.
MATT: It definitely will and I don’t want to downplay that it’s not significant because it obviously is but I think, for the individual businesses – obviously, the ones that have hundreds of employees, I would think they probably have some sort of paid sick leave policy in place or a lot of them do anyway. I’m thinking this is more smaller companies and, you know, three days per person per year is not that big but I think the big consequence for these smaller companies is going to be the vendors that they work with or the suppliers and they’re going to have the same sort of thing come into play and they’re going to have to raise their cost which will in turn end up hurting these smaller businesses because the costs are going to go up for them. I think that’s where it’s going to hurt more than actually having to give people three paid sick days per year.
NASIR: You’re right about that. The one-hour per thirty hours, first of all, you can cap it at six days or 48 hours. Six days per year, I mean, if you think about it, that’s not that much and that’s pretty much very comparable to what most employers pay, and you did mention some businesses will still be affected but I would think that any sizable business can expect some kind of sick pay. Again, this applies to pretty much all employees that work for 30 days or more and they begin accruing the days after their 90th day of employment – basically, after three months of employment. That’s also pretty common in other paid sick leave requirements as well.
MATT: Yeah, exactly. Like you said, this is kind of the first. Well, California’s the second state to do this state-wide but I think we’re going to see a similar thing in other states and maybe over time this could even expand into more days – who knows? But it’s pretty… I didn’t want to say earth-shattering but it’s big news.
NASIR: Huge – probably the biggest news that we’re heard ever.
MATT: I’m glad you’re blown away by it.
NASIR: I do think it’s interesting. We’re not going to talk about it today but it also starts me thinking about minimum wage. It starts me thinking about all the fast food workers that were arrested this week for protesting across the nation for trying to fight for higher minimum wage for their fast food work and so forth. For those employers that are employing employees in this kind of racket at minimum wage category, you don’t provide sick leave, you don’t provide certain benefits or minimal benefits, you’re going to be affected in the next few years and you have to start thinking about how this is going to affect your bottom-line, how you’re going to make adjustments, and some people may say that it’s California or this state or the other but this is kind of something going on on a national basis. Obviously, California is one of the first to do this – or the second, I should say, on a state-level but I think this is going to keep going over and over again and expanding.
MATT: Right. We talked about the fast food workers’ minimum wage a long time ago, right? The protests?
NASIR: Right, but it’s coming up again this last week, yeah.
MATT: We shall keep an eye on it.
MATT: Now, we get into our question of the day.
“Can somebody claim trademark infringement if my name is similar to theirs but I pronounce it differently?”
Interesting. I think what we can start off with is whether there’s some sort of likelihood of confusion. I think that’s a good place to start. We don’t know what the names are in this situation so it’s kind of hard to answer but we’ll do the best we can or you’ll try to come up with something clever and we can’t.
NASIR: Yeah, I think likelihood of confusion is a perception of the consumer. You have to look it in to that perspective. Sometimes, I can think of an instance perhaps that the pronunciation may be different but not have a likelihood of confusion because both of them are in completely different sectors of industry or something to that effect and maybe the actual trademark or logo looks a little bit different. But, I don’t know… to me, if they’re spelled the same, then I think most people would have confusion between the two. It reminds me of Cisco. Whenever I saw Cisco – they do semiconductors and electronic and computer parts and stuff like that, at least they used to, I’m sure they still do – I used to think Cisco oil, but they’re completely different marks, you know?
MATT: That’s true. Like you said, we don’t know what the actual names are in this instance but there’s a recent case that occurred here where there was some sort of confusion and it was over Armor Stone versus what ended up being Stanshield but Armor Stone was saying it was Stone Shield and that’s where the infringement, there was too much confusion there. What ended happening was the ruling was no correct pronunciation for trademarks that are unrecognized words.
If that’s the instance here where the name looks similar but it is pronounced differently because it’s not an actual word or an unrecognized word, then maybe you might be okay in that instance. Well, coming back to this question that we don’t know what the words are, but that’s just one consideration to take in, and I think you’re right with looking at how likely it is to confuse someone and it’s obviously a case-by-case basis.
NASIR: Yeah, and the appellate court said that the federal circuit made a mistake by only giving minimum weight to the pronunciation of the actual mark. I’m thinking about that – should the pronunciation make a difference and does that have a role in the likelihood of confusion? The problem is that, in media, that’s received visually a mark is something that’s received visually. Well, I suppose a mark could be received otherwise but, to me, I think traditionally, a mark is something that’s an image or a piece of text and how it’s pronounced doesn’t seem like it makes a big difference to me. I think it’s still going to matter how it’s used and which context and whether that’s going to cause likelihood of confusion.
MATT: I’m not sure how much it matters either but I would think pronunciation matters more for a word than a logo.
NASIR: Yeah, that’s definitely true.
MATT: That’s my expert opinion.
MATT: I don’t know if we answered this question but that’s all we can really say.
NASIR: Well, I think, if they’re depending upon the trademark and it’s spelled the exact same way as the other but it’s pronounced differently, I don’t think that’s enough.
MATT: Right, if that’s the case, then I agree.
NASIR: Yeah, I mean, just to be safe at least.
The objective here is not to become an appellate court case. Do you want to spend the money to fight this and so forth? You want to be in the clearest way possible though there may be instances where two marks mean the same with different pronunciations may be different but it’d have to be on a case-by-case basis.
MATT: Exactly. That’s all I have.
NASIR: All right, exactamundo. All right. Thanks everyone for joining us and don’t forget to leave some iTunes reviews for our podcast. If you can leave a little review or just vote for five stars then that’d be really helpful and really great for us. All right, thanks for joining us.
MATT: Keep it sound and keep it smart!