Pennsylvania Litigation Blog : Pennsylvania Litigation Lawyer & Attorney : Barley Snyder Law Firm : Serving Lancaster, Reading, York, Chambersburg

Section 512 of the Contractors and Subcontractors Payment Act allows for an award of interest, penalties, and attorneys fees to a “substantially prevailing” party. When Owner did not pay him for construction work, Contractor sued Owner, won and obtained an award for the claim, plus interest, penalties and attorneys fees. Owner still didn’t pay. Contractor then filed execution proceedings and, eventually, did recover the amount of the award by attaching Owner’s bank accounts. Contractor then filed to also get interest and penalties from the time of the original award until Contractor eventually was paid, plus contractor’s attorneys fees incurred in the collection and execution process, as well as in the appeals to Superior Court. In a case of first impression, the Superior Court said, “Yup.” The trial court had denied the Contractor’s motion for interest, penalties and fees for the collection effort, but the Superior Court panel unanimously reversed. Zimmerman v. Harrisburg Fudd, PICS No. 09-1762 (Oct. 19, 2009).

The original amount owed by Owner was $10,108.70. After adding the first set of interest, penalties and attorneys fees, that number became $21,673.99. When the execution and appeals were considered, the total of the claim was almost four times the original debt – growing to $41,989.84. As explained by the Superior Court, the statute’s “underlying objective of making an unpaid contractor whole . . . can be gutted, when he is subjected to expensive litigation costs, including those incurred in the collection-of-fees phase.”
 

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Even if you are successful in federally registering your mark, misuse of your mark may result in losing your right to enforce the registration. The term misuse is relative and generally does not lead to a removal from the registry. Rather, your use may affect the ability to enforce rights granted by the registration.

The rights established from a federal registration can last indefinitely, as long as the owner continues active use of the mark on or in connection with the goods and/or services in the registration. Therefore, it is important that you actively use your registration.

Furthermore, when used, the trademark mark should be presented as an adjective. Any presentation of your trademark, as a noun or verb, should be avoided. In fact, use as a noun or verb is a common error that an owner uses the mark as a noun or a verb (i.e. correct use = “Drink YOUR MARK Cola”; incorrect use = “Drink YOUR MARK”). You should also avoid any presentation of the mark in plural or modified possessive form (i.e. incorrect use = “YOUR MARK’s Cola”).

A mark should be adequately distinguished in presentation, especially in regards to the surrounding text and symbols. For instance, your mark can be capitalized, underlined, italicized, placed in quotation marks, or even depicted in boldface type; each typography provides an emphasis on the mark, making it more distinguishable. Since trademarks are used to create distinct commercial impressions in regard to the offered goods and services, your trademark should be distinguishable.

Most importantly, your mark should be affixed to the goods and/or services for which the mark is registered. Meaning, if you received a registration of your mark in association with product X, then use of the mark with product Y is not protected under the registration. Rather, use of the mark with product Y only provides common law rights. It would be recommended to register the mark again, but now in association with a new class of goods and/or services. The mark can be placed on the parcel in which the goods are packaged. Tags or labels may be used as well, which are attached to the product, and provide greater identity of the mark.

It is important to know that certain actions must be taken to maintain your registration, especially if in any changes in use have occurred.
 

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The first person to use a trademark in connection with specific goods or services preserves a common law right to prevent any unauthorized use of that mark with similar goods or services. However, federally registering your mark with the United States Patent & Trademark Office provides more protection than established under common law. In fact, an unregistered mark may only protect use of your mark within a specific geographical area, while a federal registration provides exclusive right to use of that mark nationally.

If your mark lacks federal registration, the ability to enforce your rights through legal proceedings may therefore be limited. In fact, a registration not only provides constructive notice of the mark to infringers, but provides right to sue in federal court with a legal presumption as to ownership of the mark. Additionally, federally registering your mark provides more remedies available against infringing parties. For instance, the registrant may recover up to triple damages and attorney's fees for any willful violations.

The rights established from a federal registration can last indefinitely, as long as the owner continues active use of the mark on or in connection with the goods and/or services in the registration. Therefore, registering your trademark provides a bundle of exclusive rights that are otherwise not available through common law use of the mark.

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Interim Final Regulations published in the Federal Register on August 24, 2009 (74 Fed. Reg 42740) provide a framework for evaluating potential breaches of Protected Health Information (PHI) in order to determine if it is necessary to send a notification letter to the patient. While not all violations of the pre-existing HIPAA privacy regulations will result in a breach requiring notification under the new HITECH regulations, a violation of the privacy rule is a prerequisite to a breach requiring notification. Thus, determining whether or not a violation of the HIPAA regulations has occurred is the first step in evaluating a breach to determine if notification is necessary.

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