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Copyright Issues

If you like to design architectural structures, write books, music, or poetry, paint, take pictures, sculpt, or put together any kind of visual images that are helpful to people or aesthetically pleasing, then sooner or later, you may create something that requires copyright protection.

The law says that when you reduce the "expression of an idea" to a tangible form, it is automatically copyrighted. However, if anyone ever infringes on that copyright, you cannot recover statutory damages unless you have registered the copyright with the U.S. Copyright Office in advance.

What is Copyright?

Copyright is a form of protection provided by the laws of the United States to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

What can by copyrighted?

You cannot copyright an "idea," but you can copyright the unique expression of an idea. For example, let's say you came up with the spectacular idea of taking a picture of the sun going down on the beach with palm trees silhouetted in the foreground. You could copyright this picture. But you could not prevent other people from taking similar photographs and selling them. You can only protect the specific photograph you took. A painter could not paint the exact same picture you took, but he/she could go to the same beach and paint a similar picture.

The following categories of works can be copyrighted:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings;

(8) architectural works.

(9) computer programs (may be registered as a "literary work");

(10) compilations (may be registered as a "literary work")

(11) maps (may be registered as a pictorial, graphic or sculptural work")

(12) architectural works (may be registered as a pictorial, graphic or sculptural work").

Defective Products

As a consumer of goods, you have the right to receive only the highest quality goods. Manufacturers have a social responsibility to make products that are both fit for their intended use and also safe.

Lost Electronic Data

Many businesses can operate without fancy buildings, but not without their computers and electronically stored data. Computers store electronic data that is worth hundreds of thousands and sometimes millions dollars. This data is considered valuable property just like your car or your office furniture. Many things can happen to damage or destroy this data, such as power outages, computer programs that unintentionally over-write valid data, unintentional deletion or computer viruses. Sometimes, the maker of defective software or defective hardware might be to blame. Aside from the lost data itself, your business might be interrupted causing you to lose money from sales you could have made otherwise.

If your electronically stored data is damaged or destroyed irreparably, or your business is significantly impacted by a shut down in your system, you may be entitled to sue whoever caused the problem. In addition, you may be able to file an insurance claim just as you would to recover the value of any other lost or damaged property. Some "all-risk" property insurance policies specifically cover the loss of electronic data. A common clause in this type of policy is as follows: "This policy insures against all risks of direct physical loss or damage, except as excluded, to covered property." Despite the existence of this clause in your policy, insurance companies have begun to argue that consequential damage caused by lost data or an interruption in business is not "physical loss" to "covered property."

However, at least one Court has rejected this argument. In American Guarantee & Liability Insurance Co. v. Ingram Micro, Inc ., No. 99-185 (D. Ariz.), the Court held that "physical" loss or damage includes the destruction of electronic data. In this case, Ingram Micro, Inc. filed an insurance claim to recover financial losses it suffered when it could not conduct business due to a power outage that caused its electronic equipment to stop working. Although power was shortly restored, programs and data stored electronically in RAM were lost and had to be reloaded. The Court ruled that:

"Physical damage is not restricted to the physical destruction or harm of computer circuitry but includes loss of access, loss of use and loss of functionality." The Court also cited other laws that make it clear that when a computer’s data is unavailable, there is damage; when a computers services are interrupted, there is damage; and when a computer’s software or network is altered, there is damage.

Timing is important if you are going to file an insurance claim. Many insurance policies have strict time limits for the filing of claims. If you have suffered a loss of business due to inoperable computer equipment or software, contact us at:

(512) 732-0111


Trade Secrets

The classic definition of a "trade secret" is contained in the Restatement 2d of Torts Section 757, comment (b)(1939):

A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process for manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers . . . A trade secret is a process or device for continuous use in the business. Generally, it relates to the production of goods, as, for example, a machine or formula for the production of an article.

Many people and business think they have "trade secrets" when, in the eyes of the law, they are not trade secrets at all. There is a six-factor test for determine whether something truly qualifies as a "trade secret."

The Restatement 2d of Torts lists the following factors for determining whether something qualifies as a trade secret:

1. the extent to which the information is known outside the business;
2. the extent to which it is known by employees and others involved in the business;
3. the extent of the measures taken by the business to guard the secrecy of the information;
4. the value of the information to the business and its competitors;
5. the amount of effort and money expended in developing the information; and
6. the ease or difficulty with which the information could be properly acquired or duplicated by others.

If you have any questions about trade secrets, contact us at:

(512) 732-0111


Real Estate Disputes

As the saying goes "Real estate -- they aren’t making anymore of it." Real estate is a precious commodity. Many fortunes have been made buying and selling real estate. Likewise, many have been lost.

Real estate disputes come in all shapes and sizes:

  1. disputes over title to a piece of property;
  2. disputes over views and overlooks from houses or commercial buildings;
  3. disputes over liens on the property;
  4. mechanics and materialmens’ liens;
  5. tax liens;
  6. judgment liens;
  7. boundary disputes;
  8. disputes over the permitted use of the property;
  9. condemnation disputes (when the county or state want to put a highway through your property);
  10. zoning disputes;
  11. disputes over endangered species;
  12. toxic waste disputes;
  13. court ordered sale of property;
  14. foreclosures;
  15. deed restrictions
  16. platting disputes
  17. road disputes;
  18. easement and right of way disputes;

This firm handles all manner of real estate disputes. If you find yourself faced with any kind of real estate dispute, contact us at:

(512) 732-0111


Patent Issues

If you tinker with devices and fancy yourself as an inventor, sooner or later, you may come up with a product that requires the protection of a patent. A patent is a legal monopoly on the right to manufacture a certain product to the exclusion of all others for a certain period of time. The government issues patents in order to reward creativity and ingenuity. If you own a patented product, you are entitled to the exclusive right to manufacture the product for a period of time so that you can recover all of your costs and make a profit.

But the products for which the U.S. Patent Office issues patents are few and far between. The application process is grueling and expensive. Lawyers who handle patents fall into two categories: (1) lawyers who are specially licensed to apply for patents ("Patent Lawyers"); and (2) lawyers who handle patent infringement lawsuits in the courtroom (federal court litigators). Only licensed Patent Lawyers can apply for patents. Only lawyers licensed to handle lawsuits in federal court can handle patent infringement lawsuits. This law firm handles primarily patent infringement lawsuits.

What is the threshold for obtaining a patent?

There is a high threshold for obtaining a patent. The applicant must demonstrate that the invention is both "novel" and "non-obvious."

Novelty Requirement: "Novelty" means that the device, process or substance is not known to others, whether as a result of publication or as a result of public use.

Non-obviousness Requirement: "Non-obviousness" means that the device, process or or material would not constitute an obvious extension of existing knowledge to someone having ordinary skill in the particular art in question.

What is the process of obtaining a patent?

The process of obtaining a patent is both time consuming and expensive. The patent process typically involves: (a) an initial search of the existing art to determine whether the product or process is "novel; (b) an opinion as to patentability; (c) preparation and filing of the application; and (d) prosecution of the application to issuance. The process could cost from $8,000 to more than $20,000 depending upon the complexity of the subject and the number and the nature of objections raised by the patent examiner. Once a patent is obtained, the owner is required to periodically pay "maintenance fees" to keep the patent in effect for the entire term of the patent. These fees are due at 3.5 years, 7.5 years and 11.5 years.

How long does a patent last?

Once the patent has issued, the term of the patent will be for 17 years for a utility or plant patent, and a maximum of 14 years for a design patent.

Should I file a patent infringement lawsuit?

The owner of a valid patent can block the unauthorized use, manufacture or sale in the U.S. of devices or materials embodying the patented invention, or of devices or materials produced in the U.S. for combination offshore with unauthorized products or materials (even if the infringer had independently conceived the idea or innovation). Similarly, the owner can seek to block the importation or use in the U.S. of unauthorized products or materials of foreign design. The owner of a patent may also be entitled to monetary damages, which might include a "reasonable royalty." If the infringement is found to be willful, these monetary damages may be tripled.

However, monetary damages can only be obtained if the owner's product bore a patent notice and the infringer was notified of the infringement and the infringer continued to infringe on the patented product. However, before filing a patent infringement lawsuit, the owner of the patent must consider that the person or business he sues may file a counter-suit attacking the validity of the patent. Therefore, the owner must consider the risk that the patent could be invalidated in such a counter-suit.

Moreover, the owner of the patent must have "clean hands." Since a patent is a government approved monopoly, any actions which improperly abuse this privilege may prevent the patent owner from enforcing the patent.

How do I contact the Patent and Trademark Office?

Call: (703) 308-HELP

Web site: www.uspto.gov

Address: 2900 Crystal Drive, Room 4B10, Arlington, Virginia 22202-3513.

If you have a patent that is being infringed upon by someone else, or you have been sued for patent infringement, contact us at:

(512) 732-0111


Domain Name Disputes

With the proliferation of commercial websites, disputes over "domain names" were bound to arise. Prior to 1999, it was common for "web-pirates" to kidnap the trademarked names of famous companies and famous people by registering their names as domain names on the internet, and then trying to sell them for millions of dollars. Domain names are registered on a "first come/first served" basis.

However, in 1999, Congress passed the Anti-Cybersquatting Act, which prohibits this conduct and authorizes private lawsuits against violators for monetary damages. The Act, however, creates a "good faith" exception for domain names that are a derivative of a person's personal name.

For example, this Firm represented a British Columbia Corporation owned by a gentleman named Don Swindells. Swindells operated a rental company called "dell-leasing.com." Dell Computer Corp. sued Mr. Swindells in Federal Court in Austin, Texas for violation of the new Anti-Cybersquatting Act.

We argued that Mr. Swindells was acting in good faith because his domain name "dell-leasing.com" was a derivation of his own personal name "Swindells" and because he had never tried to extort money out of Dell Computer Corp. We also argued that the Federal Court sitting in Austin, Texas could not exercise "personal jurisdiction" over Mr. Swindells or his company because he had never done business in Texas, had never solicited clients in Texas, and, in fact, had never even been to Texas.

The research we conducted revealed that there were two bodies of case law emerging on this issue. The courts have been finding a distinction between "active" websites and "passive" websites.

An "active" website is one in which the viewer is invited to interact with the owners of the website by purachasing products or services. A "passive" website is one which merely acts as a computerized brochure, with which the viewer cannot interact. Courts are more likely to exercise "personal jurisdiction" over a foreign website if it is an "active" website because it is interacting with citizens of the state where the court sits. Courts are less likely to exercise "personal jurisdiction" over "passive" websites because there is no interaction with citizens of the state where the court sits.

Ultimately, because my client operated only a "passive" website, the Court dismissed the case for lack of "personal jurisdiction."

If you have encountered a domain name dispute, contact us at:

(512) 732-0111


Licensing Agreements

If you are the owner of a patent, copyright, or trademark or some other form of "intellectual property" and you want to make money from it, you may want consider authorizing others to sell this property in exchange for a licensing fee and royalty payments to you.

If you are in this position, you need a licensing agreement. Licensing agreements set forth the terms and conditions under which another person is authorized to use your intellectual property. Licensing agreements can also include terms that protect you if litigation ever ensues.

Negotiating the terms of a licensing agreement is a tricky task that requires a balancing of interests. On the one hand, you will want to include terms that protect you. But on the other hand, you do not want to be so adamant about the terms of the contract that you lose the deal.

Many people who are very skilled at designing products, software, books, music, art or trademarks are not as skilled when it comes to the art of negotiation. The art of negotiation includes instinctive knowledge of when to push and when not to push for what you want in the contract, and knowing which terms in a licensing agreement should be considered "deal breakers" and which terms are "preferred" but not mandatory.

If you need a licensing agreement, contact us at:

(512) 732-0111


Toxic Poisoning

The movie, Erin Brokovitch and Class Action have brought nationwide attention to the issue of toxic dumping, which affects thousands of people.

The issue of what to do with the nation’s waste (toxic and non-toxic) has been an ongoing debate for some time that will only get worse in the future. There are extensive state and federal regulations regarding how to properly dispose of waste, both toxic and non-toxic. However, despite these regulations, some companies continue to try to cut corners and inevitably expose the public to toxic waste.

If you and your neighbors are experiencing strange diseases which seem to have no explanation, you may be living near a toxic waste dump without knowing it, or your water supply may be polluted by a distant source of toxins.

Toxic poisoning, however, takes many shapes and forms. Some buildings contain hidden asbestos, formaldehyde, or lead paint, which can also be harmful to your health.

The more common forms of toxic poisoning, such as cleaning products, and solvent, of course, can also be extremely harmful if breathed, ingested or if they come in contact with your skin.

This Firm handles all kinds of toxic poisoning disputes.

If you have any questions regarding toxic poisoning, contact us at:

(512) 732-0111


Building And Housing Defects

Design defects or construction defects in commercial buildings and houses can cause millions of dollars in damage. Often, these problems do not surface for several years. Builders can only make money two ways: (1) reducing costs; or (2) increasing prices. When competition is stiff, raising prices might mean losing sales. Therefore, it is very tempting for builders to cut costs by skimping on the quality of the materials or the quality of the workmanship.

Also, obstacles in the building process often arise that may require an honest builder to tear down a section of their work and start over. This costs time and money, which are always a precious commodity. However, unscrupulous builders often turn a blind eye to the problem and build on, knowing that the building owner will not discover the defect until long after the builder has been paid and is gone.

If you are an investor in a commercial building or a home owner who has discovered either a design or construction defect, the law provides you with certain rights if you act in a timely fashion and if you know how to proceed.

If you are in this situation, contact us at:

(512) 732-0111


Insurance Disputes

What is insurance? The commonly understand meaning is that you give your money to a big giant company and when you have an emergency, the insurance company gives you back your money, plus enough additional money to cover the emergency. Sounds like a good deal . . . right?

It’s only a good deal if the insurance company complies with its side of the bargain. Unfortunately, many insurance companies take your money, invest it, and think of a million reasons not to give it back to you when you need it most.

That is why there are strict regulations and laws to protect you from unfair insurance practices.

Disputes with insurance companies are some of the most frustrating experiences an individual can have. Usually, the insurance dispute arises at the worst possible time, when you have just suffered a tragedy.

Insurance companies have millions of dollars and high powered attorneys to fight any insurance claim they choose to fight. Only an equally smart and aggressive attorney who knows how to fight back can protect you.

The best way to get what you are entitled to from an insurance company is by producing tangible evidence that supports your claim. You would think that the insurance company would be on your side during a tragedy. But, typically, the insurance company becomes the adversary and you end up fighting the equivalent of a miniature trial to get what you are entitled to. Several examples are below:

(1) Why Doctor’s Hate Insurance Companies More Than Lawyers

A cottage industry has arisen where doctors have hired their own staff people or their own lawyers to do nothing but process their insurance claims. Every doctor and chiropractor I have ever known has had a dispute with an insurance company over payments owed to them for work they did on a person who was insured. All over the country, more and more doctors are suing insurance companies for wrongfully delaying or denying insurance payments. Sometimes doctors must wait months or years to get paid for work they have performed on insured patients. Recently, a federal court lawsuit was filed in Florida by several large medical associations against several insurance companies for routinely and unfairly delaying and denying insurance claims. The lawsuit was based on federal racketeering laws. If you are a doctor who is in a dispute with an insurance company, contact us. We may be able to help.

(2) Bad Foundation Insurance Dispute.

If you ever have a bad foundation caused by leaky plumping, the insurance company is likely to pay an expensive engineer a lot of money to generate a report that concludes that the foundation damage was not caused by the leaky plumbing, but by something else. The reason for this is that most insurance policies only cover foundation damage if it is caused by leaky plumbing. Therefore, they have an incentive to eliminate leaky plumbing as a cause. Expert reports such as these can cost the insurance company as much as $5,000.00. But this is much cheaper than actually paying your claim. Insurance companies know that you are not likely to shell out $5,000.00 of your own money to hire your own engineer to refute the insurance company’s engineer’s report. What most people don’t know is that insurance companies tend to use the same engineers over and over because they always give them the results they want. It is a symbiotic relationship. As long as these engineers keep giving the insurance companies the conclusions they like, they will keep getting hired. Often these reports are not as objective and scientific as you would like to think. Don’t be fooled. If you had the money, you could hire your own engineer, in many cases, to give the opposite conclusion. Then you would have the leverage to negotiate a settlement. I recently settled a case in just this way.

(3) Emergency Helicopter Insurance Dispute

Recently, my brother was seriously injured in a cycling accident in a major fundraiser bike ride from Houston to Austin, Texas. In the accident, he broke two ribs and was having trouble breathing. Any medical student knows that whenever you have broken ribs, there is always a possibility of a punctured lung. A doctor who was also cycling with the group that day came upon the accident and instructed the EMS technicians to airlift him out. As a result, he was airlifted to a hospital in Houston.

Wouldn’t you know it, a few weeks later, my brother received a letter from the hospital saying the insurance company was refusing to pay for the $10,000 helicopter ride, and that he was expected to pay the bill. My brother was shell-shocked. The reason the insurance company came up with for denying the claim was that the helicopter ride was “not medically necessary” (one of their favorite expressions). No one knew who the doctor was who happened to be cycling by the accident that day. So, it was impossible to get him to write a letter saying it was medically necessary.

Normally, I would have sent the insurance company a nasty letter demanding that they pay the claim. But to prove what the average person can do on his own, I simply instructed my brother to get a letter from another doctor explaining why it was medically necessary to be airlifted out of there. My brother got a doctor friend to write a letter for him. Then my brother wrote his own letter to the insurance company appealing the company’s decision, attaching the doctor’s letter as an exhibit. The insurance company capitulated and paid the claim.

If you are in a dispute with an insurance company, you have rights. Contact us.

Investment Disputes

They say things that sound too good to be true usually are. Even the most sophisticated investors can sometimes fall prey to promises of high returns on very risky investments. If this has happened to you, the law gives you rights.

If you have invested in the stock market, there are strict federal laws that govern each transaction you make. Most stockbrokers require you to sign an arbitration agreement before they will execute any transactions on your behalf. These arbitrations clauses are binding and enforceable. If you have signed an arbitration clause, you will not be able to sue in court. Your only remedy will be to present your case to an arbitrator.

If you go into arbitration without an attorney, the stockbroker’s attorneys will eat you alive. We recommend that you always hire able counsel to take your case to arbitration. But attorneys are expensive. Be sure that the amount of money you are chasing is worth what you are about to spend on a lawyer.

General investments that are made with partners, joint ventures and venture capitalists are not governed by federal law. They are governed by traditional state laws such as common law fraud, breach of contract, and conversion of property. In some cases, these simpler laws can provide a greater remedy than federal laws.

If someone has made off with your hard earned money, you may also be entitled to freeze their bank accounts pending the outcome of your lawsuit.

If you lost money in a poor investment, and you believe fraud is involved, contact us at:

(512) 732-0111


Trademark Issues

What is a Trademark?

A Trademark is a unique word, phrase or symbol or design that tells the public at a glance something about you or your organization. A "service mark" is the same as a trademark, except that it identifies and distinguishes a particular service rather than a product. Some trademarks are so easily recognized that they are unmistakable. Take for example, "Coke," "Mercedes Benz" "Exxon," "Oreo."

The federal registration of trademarks is governed by the Trademark Act of 1946, as amended, 15 U.S.C. 1051, et seq. The Trademark Rules, 37 C.F.R. Part 2; and the Trademark Manual of Examining Procedure (2d ed. 1993). The Lanham Act, 15 U.S. C. Section 1051, protects registered trademarks.

A trademark is different from a copyright or a patent. A copyright protects an original artistic or literary work. A patent protects an invention.

Companies spend millions of dollars in marketing and advertising to make the public familiar with their trademarked product. As a result, they do not want competitors "piggy backing" on the goodwill and reputation they have developed by copying their trademarked symbols. The test for trademark infringement is "likelihood of confusion."

Establishing Trademark Rights .

Trademark rights arise from either: (1) actual use of the mark; or (2) the filing of a proper application to register a mark in the Patent and Trademark Office (PTO) stating that the applicant has a bona fide intention to use the mark in commerce.

Federal registration is not required to establish rights in a mark, nor is it required to begin use of a mark. However, federal registration can secure benefits beyond the rights acquired by merely using a mark. For example, the owner of a federally registered trademark is presumed to be the owner of the mark and is entitled to nationwide use of the mark.

Toxic Mold

The number of homeowner claims and lawsuits involving toxic mold damage has been increasing dramatically in the past two years.

In June, 2001, a jury in Austin, Texas awarded a family $32 million in damages against Farmers Insurance Group. The jury found that a subsidiary of Farmers Insurance Group mishandled the family’s claim for mold damage and committed fraud in the way it dealt with the family’s claim.

The family claimed that Farmers failed to adequately and swiftly cover repairs for a water leak, which allowed the toxic mold stachybotrys to overrun their home and damage their family’s health. The husband claimed that the mold caused him to suffer neurological damage that ended his career as an investment banker.

The family argued that instead of trying to fix the problem. The company looked for every possible way to cut its costs, even failing to acknowledge that the toxic mold had spread to the family’s separate living quarters.

This was the first case in the nation in which a jury has awarded a homeowner monetary damages from an insurance company in a toxic mold case.

Rest assured that there will be more in the future.

If toxic mold has invaded your home or office building, call us.

Executive Employment & Disputes

Executive employment disputes come in all shapes and sizes. Because executives are higher paid employees and are privy to more "insider" information, many employers will give an executive a written contract agreeing to employ him/her for specific period of time.

If you have a written employment agreement for a specific period of time, then the "employment at will" doctrine does not apply to you. Instead, both you and your employer are bound by the terms of your contract. If you have been terminated before your contract expires, you have a claim for breach of contract (not for "wrongful termination").

Many written employment contracts contain confidentiality clauses and non-compete clauses.

Confidentiality clauses mean exactly that. You agree to keep confidential any information that you did not previously have, and that is not generally available to the public, which was given to you by your employer.

To read a brief on the enforceability of non-compete clauses, click here.

Executives are not immune from being the victims of sexual harassment, retaliation and discrimination (age, sex, disability and race).

If you are currently involved in an executive employment dispute, contact us:

(512) 732-0111


The At Will Employment Doctrine

Most people will encounter some type of employment dispute at some point in their lives. Most people believe they have a "right" to work and that they are entitled to keep the job they have.

This misconception stems largely from our belief that the constitutional right to "life, liberty and happiness" includes the right to work for a living. Unfortunately, even though we live in the "land of opportunity," there is no constitutional right to a job. You have the constitutional right to sell yourself and your credentials in order to get a job, but there are no constitutional guarantees that you will get a job.

What is the employment at will doctrine?

In many states, including Texas, an employer can terminate an employee for any reason or no reason (unless it violates a constitutional right). This is known as the "employment at will doctrine." This means that you could work at a company for 40 years and show up one day and your boss could say, "I don't like your tie. You're fired." This is rude, offensive, humiliating and not fair. But it is not illegal!

One of the first questions I ask clients is "Do you have a written contract in which your employer agreed to employ you for a specific period of time?" If not, then you are an "employee at will."

The fact that you can be terminated for no reason does not mean that your employer will terminate you for no reason. In fact, most employers try to find some legitimate reason for termination so that they don't have to pay unemployment fees.

In Texas, and in many states, if you are terminated for cause, you are not entitled to unemployment wages. Therefore, most employers will try to create a "paper trial" showing that you were terminated for cause. You employer may suddenly start giving you poor performance reviews for no reason at all, or place unreasonable demands on you that you are not capable of meeting. Again, although this is rude, offensive and not fair, it is not illegal.

Are there exceptions to the employment at will doctrine?

There are, however, exceptions to the employment at will doctrine. You cannot be terminated on the basis of your age, sex, disability or race. You also cannot be terminated in retaliation for exercising certain statutory rights. For example, in Texas, if you file a worker's compensation claim, your employer cannot retaliate against you by firing you. If you file a sexual harassment claim or any kind of discrimination claim, your employer cannot retaliate against you by firing you. If you work for Texas state agency, and you report that agency for a violation of the law, then the Texas Whistleblower Act protects you from retaliation from the state. However, the Whistleblower Act only applies if you were working for a state agency.

However, the best way to avoid the employment at will doctrine is to get a written contract from your employer in which it agrees to employ you for a defined period of time (i.e. one year or more, depending on what you negotiate). This is especially important if you are taking a job, which requires you to move from another city or state.

There have been many horror stories in which an employee sold his/her house, uprooted his/her family, and left a lucrative job in another state to come to work for a company, which subsequently fires him/her a few weeks after he/she begins working. If you are considering taking a job in another state, always ask your potential employer if they are willing to sign an agreement to hire you for a specific period of time in order to make the move worth your while. If you currently find yourself in the position of having moved from another city or state in reliance on a verbal representation that you would have this job for a while, and you have been terminated shortly after you started work, there are other legal doctrines that may protect you. Don't give up.

If you are faced with an employment dispute, contact us.

Sexual Harassment

Yes, this still happens. Many people believe that with all the sensitivity training and emphasis on avoiding lawsuits, sexual harassment would all but be eliminated. Not so. Sexual harassment is alive and well.

There are two types of sexual harassment: (1) hostile environment sexual harassment; and (2) quid pro quo sexual harassment.

Hostile environment sexual harassment exists when a co-worker makes sexual advances toward another to such a great extent that it adversely affects the other person’s conditions of employment. An occasional sexual comment is not enough. The sexual harassment must be consistent and prevalent. Asking someone out on a date is also not enough as long as the requesting party can take "no" for an answer and does not continue to harass and badger the other person, and does not make life at work difficult for the other party for rejecting the request.

Quid pro quo sexual harassment exists when a supervisor pressures a subordinate for sexual favors in exchange for promotions, favorable job assignments, for staying employed or some other job benefit.

However, even if you have experienced one of these two types of sexual harassment, it does not automatically mean that you are entitled to lots of money from your employer. Employers can, and often do, insulate themselves from liability by maintaining written policies against sexual harassment and by taking immediate action to reprimand or terminate the harasser. The courts have found that if an employer takes these measures, it may avoid liability.

Is there "same sex" sexual harassment?

Absolutely. As gay lifestyles are becoming more and more accepted, "same sex" sexual harassment is on the rise. If you have experienced "same sex" sexual harassment, the law protects you as well.

Is there such a thing as reverse sexual harassment?

Yes. The first lawsuits for sexual harassment involved male to female sexual harassment. However, more and more women are becoming the aggressors. If you are a male who has been sexually harassed, the law protects you as well.

What should I do if I am being sexually harassed?

The first thing you should do is submit a written compaint to your human resource director, or to the harassers boss. It is critifcal that this complaint be in writing so that you can prove that you did complain. If the employer takes immediate action to reprimand the harasser, you will not be able to sue the employer. If the employer takes no action and the harassment continues, you may be able to sue the employer.

The second thing you should do is file an administrative complaint with the Equal Employment Opportunity Commission (EEOC). The law requires that you file this administrative complaint before you file a lawsuit. The EEOC will typically initiate an investigation and ask the parties to mediate the dispute.

Filing an EEOC complaint has an additional advantage. Once you file your EEOC complaint, if your employer fires you or begins to make life difficult for you, you may have an additional complaint for retaliation. Retaliation counts as a separate offense. Therefore, even if your original sexual harassment claim was not well founded, your claim of retaliation may win you the case.

What if I am falsely accused of sexual harassment?

These days, big companies are so hypersensitive about sexual harassment complaints that they often reprimand or terminate the accused harasser without much of an investigation. When this happens, it damages the reputation of the accused person, sometimes beyond repair. If you have been terminated and your employer specifically states or writes that the reason for termination is sexual harassment, you may have grounds for a libel or slander lawsuit . . . that is . . . if you are innocent and you can prove it. Keep in mind that anytime you sue someone for libel or slander, you put your own reputation at issue and it is legal for your opponent to go into every aspect of your reputation. In addition, keep in mind that your employer is aware of the potential for a libel or slander lawsuit. Therefore, your employer may not specify a reason for terminating you. If you live in an "at will employment" state, your employer is not obligated to give you a reason for termination. Unless you are specifically told that you are being terminated for sexual harassment, you do not have a potential libel or slander claim.

If you have any questions about sexual harassment, contact us.

Non-Complete Clauses

Many employers ask their employees to sign non-compete clauses as a condition of employment. If you have quit a job or have been terminated and you are faced with a non-compete clause, you should consider two things: (1) whether the non-compete clause is enforceable; and (2) whether your former employer is likely to spend the money on attorneys’ fees to try to enforce it against you.

The law regarding non-compete clauses varies from state to state. In Texas, it is difficult to enforce a non-compete clause. You can read a good brief that thoroughly discusses the enforceability of non-compete clauses in Texas by clicking here.

If you are an employer and you want help drafting a non-compete clause that will be enforceable in court, contact us.

If you have questions about non-compete clauses in general, contact us.

Whistleblower Claims

If you have been fired for reporting the violation of a law by your employer, then you may have a "whistleblower" claim. But, keep in mind that "whistleblower" statutes vary from state to state. In Texas, you can only bring a "whistleblower" claim if you were working for a city, county or state agency . If you were working for a private entity, and you were fired for reporting some type of misconduct, Texas law does not protect you.

However, if you are working for a private entity , and you are fired for refusing to personally violate the law, then Texas law may protect you.

If you were working for a federal agency, certain federal "whistleblower" statutes may also protect you.

If you have questions about "whistleblower" claims, contact us.

File Copyright?

How do I register a copyright?

A very simple explanation of how to register a copyright can be found at the U.S. Copyright Office’s web site.www.loc.gov/copyright .

To register a work, send the following information to the U.S. Copyright Office:

  • A properly completed application form (available online);
  • A nonrefundable filing fee of $30.00 per application;
  • A non-returnable copy of the work being registered. (This requirement varies depending on the type of work being registered).

How do I contact the U.S. Copyright Office?

Call: (202) 707-3000 for general information
(202) 707-9100 for copyright forms
Mail to: Library of Congress
Copyright Office
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000

If you feel someone has infringed on your copyright or you have been sued for copyright infringement,
CONTACT US AT: (512) 732-0111 info@teknolaw.com

Understanding Libel and Slander

Slander is verbal language that is false and that damages the reputation of another person.

Libel is written language that is false and that damages the reputation of another person.

Business disparagement is any kind of language (spoken or written) that is false and damages the reputation of a business.

Defamation is the generic term used to describe all kinds of false language that damages the reputations of individuals or businesses.

Truth is a defense to any kind of claim of defamation. If you are thinking about suing someone for defamation, keep in mind that you automatically make your reputation a target for the opponent to shoot at in court. In other words, if you are claiming that your reputation has been damaged, you invite your opponent to show that you did not have a good reputation to begin with. This is often a risky proposition.

The statute of limitations for defamation claims in Texas is one year. This is shorter than most statutes of limitations. No matter what state you live in, you only have so much time to file your lawsuit. Be careful to check on what the limitations period is in your state.

If you have questions about defamation, contact us.

Stealing Clients Or Client Lists

Although we live in a free country where healthy competition is encouraged and rewarded, there are limits.

"Tortious interference" is a term that describes a certain type of unlawful competition. Tortious interference occurs when one person wrongfully induces another to breach a valid contract with a third party. In such a case the third party may have a "tortious interference" lawsuit against the first party.

Client lists may be protected as a "trade secrets" if the list meets certain requirements of "trade secret" law. Click here to find out what qualifies as trade secrets.

If you want more information on the law regarding stealing clients or client lists, contact us.

Libel And Slander

Slander is verbal language that is false and that damages the reputation of another person.

Libel is written language that is false and that damages the reputation of another person.

Business disparagement is any kind of language (spoken or written) that is false and damages the reputation of a business.

Defamation is the generic term used to describe all kinds of false language that damages the reputations of individuals or businesses.

Truth is a defense to any kind of claim of defamation. If you are thinking about suing someone for defamation, keep in mind that you automatically make your reputation a target for the opponent to shoot at in court. In other words, if you are claiming that your reputation has been damaged, you invite your opponent to show that you did not have a good reputation to begin with. This is often a risky proposition.

The statute of limitations for defamation claims in Texas is one year. This is shorter than most statutes of limitations. No matter what state you live in, you only have so much time to file your lawsuit. Be careful to check on what the limitations period is in your state.

If you have questions about defamation, contact us.

Worker's Compensation Retaliation

In Texas, you have the right to file a worker’s compensation claim if you have been injured on the job. If your employer retaliates against you for filing such a claim, you have the right to sue your employer. If you simply lose your job for some other legitimate reason, you do not have a retaliation lawsuit. You must be able to show that your termination was motivated by retaliation. Intent to retaliate is very difficult to prove because employers do not generally announce, "We are firing you because you filed a worker’s compensation claim." Employers will typically hide their true intent by finding some other "legitimate" reason for terminating you. In order to bring a solid worker’s compensation retaliation lawsuit, you need tangible, objective, "smoking gun" evidence of your employer’s intent to retaliate. It is rare that you will ever have this kind of evidence. But every now and then an employer makes a stupid mistake and leaves you this type of gift.

A classic example of the type of evidence that is needed to support a retaliation claim is a case in which I recently represented a certified transmission technician who injured his shoulder on the job. The injured worker was on medical leave for approximately 14 months. When the doctor said the employee could go back to work, he eagerly reported the news to his employer, who had kept his tools in his work stall for him during the entire leave of absence, waiting for him to return. At first, the shop supervisor welcomed him back. However, a few days later, the shop supervisor informed him that he was not needed.

It so happened that the owner of the car dealership also owned another car dealership in a nearby town. The employee heard that this nearby dealership was desperate for certified transmission technicians. The transmission technician went to that dealership and was welcomed with open arms. The employee actually worked one full day. However, the next day his supervisor informed him that he had been instructed by "upper management" to terminate him. The employee called the human resources department to ask why. He was told that that he was terminated because he was considered a "high risk" employee. This was the "smoking gun" we needed.

This is the type of evidence necessary to bring a legitimate retaliation claim under the worker’s compensation statute. We are currently representing the employee in his lawsuit against the owner of these two car dealerships.

To read a copy of the lawsuit we filed, click here .

If you have any questions about worker’s compensation retaliation contact us.