Tingen & Williams https://tingenwilliams.com A law firm based in Richmond, Virginia. We specialize in immigration, business law, intellectual property, and family law. Fri, 13 Nov 2020 18:52:35 +0000 en-US hourly 1 https://wordpress.org/?v=5.5.3 https://tingenwilliams.com/wp-content/uploads/2020/01/TW-favicon-new.png Tingen & Williams https://tingenwilliams.com 32 32 Skating Your Way Into Intellectual Property: IP Law in Figure Skating https://tingenwilliams.com/2020/ip-law-in-figure-skating/46691 Fri, 13 Nov 2020 14:27:59 +0000 https://tingenwilliams.com/?p=46691 I vividly remember watching the 2018 PyeongChang Winter Olympics during law school from the comfort of my home.

I’d watched the Olympics before, but performances in this particular event led me to view figure skating in a new light.

After discovering that a close friend actually taught figure skating—and that I could take figure skating lessons as an adult—I began to become more involved in figure skating as a whole.

This newfound interest, combined with my ongoing love for all things related to intellectual property, has led me to do some research on how figure skating intersects with the various core elements of IP law.

In this article, I’ll discuss a few basic ways for people and businesses in the figure skating industry to protect their goods, services, and content from those who would infringe on their IP.

Note, however, that this is simply a quick overview of the topic.

Only an attorney who has reviewed your entire case can provide the advice you need to resolve a particular intellectual property matter.

Trademarks in Figure Skating: The Basics

Women's legs with white figure skates on pink background.

If you’ve ever watched a figure skating competition you’ve probably seen a figure skater perform a skill with a name (such as the “Biellmann spin” or the “Salchow jump”).

If you’re new to the sport, you may not know that each of these named skills or elements were actually named either by or for their original creators.

For example, the Biellman spin is named after Denise Biellmann, who popularized the spin in the late 1970s.

The move requires incredible flexibility and concentration, and many people attribute this “trademark” move to Ms. Biellmann.

Note, however, the difference between a “trademark” move (in the vernacular) and a move that can be registered as an enforceable trademark.

Specifically, skills and moves like the Biellmann spin are not registrable as trademarks under current U.S. law.

The only exception is when such moves are directly related to, and used in connection with, a specific good or service.

In the Biellmann spin example noted above, for instance, Ms. Biellmann could show that she used her name in connection with a specific good (such as a clothing brand) or service (such as entertainment services).

If someone took her spin and recorded it as an animation, then it could likewise be used as a “motion” trademark, these are tricky, though.

By doing so, she might be able to register the move as a trademark, provided her case meets certain specific requirements.

Put simply, figure skaters cannot register their skills and moves as trademarks unless they use these moves as a part of a greater brand or service.

For this reason, these athletes often choose to pursue other ways to protect their intellectual property, as described below.

Figure Skating Trademarks You Can Register with the USPTO

Ok, so you can’t register a signature move or skill with the USPTO.

What other options are available then?

As I mentioned above, to register a trademark for federal protection from the U.S. Patent and Trademark Office (USPTO) the trademark (1) must be used as a source identifier for a particular good or service, and (2) must be used in commerce.

For example, if you go searching for a new pair of figure skates you may run into brands such as Edea, Jackson, and Riedell.

Each of these brands sells goods relating to figure skating, and thus use various forms of intellectual property protections to safeguard their brand from the competition.

Specifically, both Jackson and Riedell have registered trademarks with the USPTO, while Edea has chosen to register with the World Intellectual Property Organization instead.

As another example, I’m currently participating in the Learn to Skate USA program.

The United States Figure Skating Association received a registration for this brand in in September of 2015 by registering it as an educational service.

In each of these examples, the businesses chose to register their intellectual property as a trademark as a way of protecting their interests in, and rights to, the particular product or service they’re offering.

Note that these protections aren’t just limited to shoes and classes, but extend to almost all forms of goods and services that exist in the figure skating world.

From various types of skating equipment to costumes, merchandise, skating rinks, and even the Zamboni brand ice-resurfacing machines, trademarks act as a valuable tool for protecting intellectual property from competitors.

Put simply, while you can’t register a particular skill or move with the USPTO, pretty much everything else in figure skating can be (and probably has been) registered as a trademark.

Could a skater register a copyright for their signature move?

As with the trademark example above, the short and rather unsatisfying answer is that it will generally depend on the circumstances of the case.

However, the odds are most certainly not in your favor.

Current U.S. law defines copyright protections as covering:

Original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(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; and

(8) architectural works.

17 U.S.C. 102

As you can see by the code, we’d first have to categorize the move into one of the eight established categories, and then see if the move meets the requirements for originality, fixation, and authorship.

One of the best examples of trying to protect a signature move in this manner doesn’t actually come from figure skating, but, rather, from The Fresh Prince of Bel-Air.

In The Fresh Prince of Bel-Air the character Carlton Banks, played by Alfonso Ribeiro, has a signature dance (“the Carlton”) that he performs whenever he is excited.

Due to its popularity, Take-Two Interactive (the publisher of NBA 2K) and Epic Games (the publisher of Fortnite) each decided to add an emote to their games that resembles Ribeiro’s dance.

Ribeiro, angered that these brands were using what he perceived to be his intellectual property without his permission, decided to file a copyright infringement lawsuit against the companies.

However, the U.S. Copyright Office refused his registration, and promptly ended Ribeiro’s attempt to maintain a copyright infringement lawsuit.

Ribeiro received a refusal from the Copyright Office partially because they deemed the dance as a “short dance routine consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive.”

Similar expectations occur in figure skating, and while the odds are that the entire choreographed performance may be protectable, any particular individual move is unlikely going to qualify for protection based.

Which Elements of Figure Skating are Eligible for Intellectual Property Protections?

figure skating pair skaters in free skating compete

As we noted above, there are several different ways to protect your intellectual property as a figure skater.

Generally speaking, these methods relate to protecting specific instances of your routine, or the routine’s choreography as a whole.

However, other related forms of art (such as the music you use or the costumes you wear) may also fall under one of the various forms of intellectual property protection.

Choreography and Specific Routines

As we noted above, specific moves or skills are generally not something you can gain intellectual property protections for.

Put simply, commonplace movements or gestures, ordinary motor activities, athletic movements, and any other feats of physical skill and dexterity are not, in and of themselves, eligible for registration.

However, just like with works of visual art, choreographic elements may qualify as a compilation of movements, and accordingly can be registered as copyrightable materials.

As a conceptual example, a musician cannot register a copyright for a particular guitar chord, as doing so would be silly.

However, by arranging a series of guitar chords in a particular manner, that musician could register the composition as a song.

The same is largely true for the various movements and elements that make up the choreography of a figure skating routine.

Put another way, the selection, coordination, and arrangement of the routine is the key form of expression for copyright purposes, and not the elements that make up the routine themselves.

For example, if a step sequence in a figure skating routine includes traditional choctaws, three-point turns, rockers, etc. with no unique entries or arrangement, then it is unlikely the choreography would qualify for copyright protection.

However, if the sequence includes unique moves or uncommon arrangements, it may qualify for copyright protections depending on the circumstances of the case.

Note, however, that any choreography would have to meet the general requirements of originality, fixation, and authorship to be eligible for copyright protection.

Often, these requirements are met by fixing the routine in a written medium for the respective program or by recording it with video.

Costumes

One of the more obvious elements of figure skating that you can protect under copyright are the costumes.

There are so many color combinations, fabric choices, shapes, and stylistic variations that could all be copyright eligible.

However, copyright protections for fashion can also be highly complicated because current U.S. copyright laws don’t include protections for any form of functional elements.

Further, a recent Supreme Court case regarding uniforms (Star Athletica) has complicated the matter even more.

In this decision, the Court attempted to clarify the division between a useful article of clothing and features included for aesthetic purposes:

A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as
a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium
of expression—if it were imagined separately from the useful article
into which it is incorporated.

Star Athletica, LLC v. Varsity Brands, INC., Et Al.

Put another way, your costume would have to qualify as visual art by itself to receive copyright protections under current copyright law.

Visual Art

This is an intentionally broad category to include pictorial, graphic, and sculptural works.

Taking photos at competitions of people, products, and the scenery may all be protectable.

If you draw or paint with figure skating subject matter, then it could be protectable.

If you like three-dimensional works like sculptures, then your related works may also qualify.

Keep in mind that if you include a specific skater or person within your content, then you generally will need their permission to sell the work.

See appropriation of name or likeness below for more.

Blogs and Literary Works

This blog post about figure skating is also protectable under copyright.

For those of us that have not been skating since we were toddlers or practicing skating like it’s a part-time/full-time job, this works well.

Additionally, I have talked primarily about singles skaters, but Maia and Alex Shibutani have two registered trademarks in association with their blog for the mark SHIBSIBS.

One is for the services of providing vlogs, etc. and the other is for shirts and other goods.

They are an excellent example of protecting each aspect of their work.

Appropriation of Name or Likeness

Outside of intellectual property, there is a right that is based on the right against others profiting from your image or goodwill without your permission.

This has many names like right of publicity.

These types of laws are based on the concept of privacy rights, generally.

Each state has its own law regarding what is required, but generally the defendant must use the name, image, or goodwill of a person commercially.

This is easiest to think of in terms of sponsorships and branding.

Everyone knows Wheaties by General Mills Inc. has a strong history of including popular athletes on the cover of their cereal boxes.

If General Mills were to use an athlete’s image on their box without asking, then any money they made from the unauthorized use would be part of the case.

The same is true when using the likenesses of famous figure skaters or other similarly public individuals.

Conclusion

ice resurfacer clean ice in skating rink

If you are a figure skater, a brand owner in the industry, or someone who just likes to watch other people perform, there are many ways that you can protect related content.

While registering a trademark for a signature move is probably not likely, you can register a trademark in merchandise and entertainment services.

Additionally, you can seek copyright protection for the content you create like choreography, video, and blogs, etc.

You can also seek patent protection over the machines and systems involved in figure skating the shapes of the boots and blades as well.

Outside of intellectual property, there are other associated rights like the right of appropriation of one’s name or likeness or however your state refers to it.

Talking to an intellectual property attorney can help clarify just how much content or aspects of your business in the figure skating industry you can protect.

Further Reading

Other Resources

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Do I Have to Update My Virginia Estate Plan if I Move Out of State? https://tingenwilliams.com/2020/update-virginia-estate-plan-to-move-out-of-state/45517 Thu, 12 Nov 2020 15:58:02 +0000 https://tingenwilliams.com/?p=45517 In general, yes. It’s wise to update your estate plan after every major life event.

For this reason, you should at least review your estate plan every time you move to a new state, get married, have children, or experience a comparable life event.

Often, you may find that you’ll have to revise your estate plan to match the rules and guidelines for your new state.

In this article, we’ll cover the basics of what you need to know about estate planning laws when moving to a different state.

However, you must speak with an attorney before making any changes to your estate planning documents.

Only an experienced attorney can advise you on the best course of action for your particular case.

Major Life Events and Estate Plans: What You Need to Know

Property investment concept. Wooden house, dollar bill and calculator on table. Pen prepare planning savings money to buy a home, mortgage and real estate investment.

Whether or not you need to update your estate plan is a decision you’ll need to make with the assistance of an attorney or financial advisor.

However, it’s always advisable to at least review your estate plan after every major life event.

In general, all of the following may necessitate changes to your estate plan:

  • You move out of your current state or to a different zip code;
  • Your spouse dies;
  • You marry;
  • Your marriage ends through divorce or annulment;
  • You or your spouse stop working or reduce your hours to the point that your income is significantly affected;
  • You or your spouse experiences the loss of an income-producing property through means such as a natural disaster, arson, fraud, or theft (i.e. not due to sale or transfer of property);
  • You or your spouse experiences a scheduled cessation, termination, or reorganization of an employer’s pension plan;
  • You have a baby or adopt a child;
  • You become a U.S. citizen or the citizen of another country;
  • You are incarcerated;
  • And much, much more.

Further, only an attorney or experienced financial advisor will know all the nuances and different laws that will apply to your case.

For example, while your will and other documents may remain valid after you move to a new state, they may also become weaker due to differences in local and state laws.

Since each state has enacted different laws for how to divide a person’s estate after they die, your Virginia estate may be impacted by the state law where you now reside.

Because of this, you should take steps to amend your estate planning documents so they align nicely with your new state’s laws.

Estate Plan Considerations: 6 Steps You May Need to Take when Moving Out of State

Moving concept brown box in foreground

As we mentioned above, you should always review your estate plan whenever you experience a major life event.

For this reason, it’s highly recommended that you look over your estate planning documents with an attorney when you move to a new state.

We’ll list six of the most important considerations you should know about below.

However, please remember that only an attorney or financial professional who has reviewed your documents in full can tell you whether you should make any changes to your estate plan.

1. Update Contact Information

As a simple but important first step, it’s usually wise for you to review and update all of the contact information entries on your estate planning documents (and accounts) as soon as you finish your move.

While this may seem like a simple update, it’s also crucial from an organizational perspective, and can help you mitigate issues down the line.

You may also want to retain an attorney in your new state in case you experience any complications while updating your contact information.

2. Manage Differences in Estate Laws

While some of the differences in estate law between states may seem trivial or something that only an attorney would care about (such as the exact method of forming a trust or writing a will), others can be much more substantive.

Many states, for example, require that spouses inherit a minimum share of the estate after an individual’s passing, and this minimum can vary widely from state to state.

Similarly, some states have various inheritance and estate taxes, while others impose no taxes at all.

These laws can vary on other elements of your estate plan as well, such as who (and how) you can assign your power of attorney, whether or not certain forms of wills remain valid, and more.

Put simply, each state does estate laws differently, so you must speak with an attorney about whether or not your Virginia-based estate plan is still legally strong in your new state.

3. Manage Differences in Property Laws (Community vs. Common Law)

Moving from a common law state to a community property state, or vice versa, can also cause some serious problems.

In a common law state (such as Virginia), each spouse may be able to own property individually.

For example, a spouse may be able to keep certain assets “separate” from their spouse, provided these assets meet specific guidelines.

However, in a community law state, all property acquired during a marriage is considered community property, and is thus owned jointly by both spouses.

In the contexts of estate law, these rules may have an effect on how your property is distributed after your death.

For example, some states have varying rules about when co-owned property may pass to the surviving owner.

For this reason, it is essential to amend your will, trusts, and other aspects of your estate plan accordingly.

4. Deal with Changes in Affections and Relationships

We mentioned above that you should change your estate plan after every major life event, such as when you move, get married, or have children.

However, it’s worth noting that these major life events can have an effect on your affections and relationships in addition to your finances and estate plan.

These effects can be positive, such as if you move to a different state to be closer to your grandchildren, or negative, such as if you move to a different state and lose contact with close friends and family.

In either event, it’s wise to revise your estate planning documents to name (or un-name) family members and friends as your relationships with these individuals change.

5. Manage New Assets and Liabilities

Moving to another state generally means moving all your property from one place to another.

For this reason, people will often choose to either throw away old things or purchase new items to help them settle in to their new home.

Whether you’re purchasing a new house, selling old property, or just changing up the furniture in your living room, it’s smart to review how this new property fits in to your overall estate plan.

For example, you may want to update your will to account for a new home in your new state. Similarly, you may want to place other property or assets into a trust so your estate plan is easier to manage.

Whatever you decide, it’s smart to take account of any new assets or liabilities you gain as a result of your move.

6. Review Your Documents with an Attorney to Make Other Changes

Now that you are in a different state, you may need to update other aspects of your estate plan.

Retirement plans, beneficiaries, trustees, executors, and other aspects of a total estate plan play no longer be relevant now that you’ve relocated.

Your trustees or executors may not live nearby anymore, or you may have changed jobs and need to update your retirement plan or other aspects of your new job.

By reviewing your estate plan with an attorney, you can ensure that nothing is missed, and you can also make updates as needed.

Conclusion

Portrait of happy senior couple packing cardboard boxes while moving to new house

Generally speaking, you should update your estate plan after every major life event.

While your estate plan will probably still be valid even after you move to a different state, it’s still wise to consult with a local attorney just to double check.

If you know you may be moving to a different state before making an estate plan, then it’s worth mentioning to your attorney at the time. It can impact advice.

Especially in scenarios such as the seven we listed above, it’s important for you to update your plan to match the laws and guidelines of your new home.

To make the most effective decisions, and potential changes, to your estate plan you should review it with an attorney after you move.

The whole point of an estate plan is to better protect your estate – assets, yourself, beneficiaries. 

Sometimes, the best idea is to get a new set of documents that clearly meet your new state’s legal requirements.

Regardless of your reasons, it’s always smart to at least review your estate plan, preferably with an attorney, as soon as possible after your move.

Only an experienced local attorney can tell you whether or not your estate plan will hold up in the laws of your new home.

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Can I Drive with My Pet in the Car in Virginia? https://tingenwilliams.com/2020/drive-with-pet-in-the-car-virginia/46627 Thu, 12 Nov 2020 14:54:10 +0000 https://tingenwilliams.com/?p=46627 In general, yes. You can drive with your pet in the car in Virginia.

However, there are also several nuances you should be aware of in regards to Virginia’s laws and transporting companion animals.

Most of these nuances revolve around driving with unrestrained animals in your vehicle.

We’ll expand on the basics of Virginia’s pet laws below, as well as a few best practices you should know about when transporting your animal in a crate or harness.

Please note, however, that it’s highly recommended that you speak with an attorney if either of the following is true:

  • You were given a ticket as a result of driving with an unrestrained animal in your vehicle.
  • You were involved in an accident that either (1) was caused by your animal, or (2) resulting in the injury or death of your animal.

Only an attorney who has reviewed the full facts of your case can provide the advice you need to resolve your case safely and efficiently.

The information provided below is for educational purposes only.

Driving With a Pet in the Car: The Short Answer

cute small jack russell dog in a car wearing a safe harness and seat belt. Ready to travel. Traveling with pets concept

Put simply, it’s perfectly legal to drive with a pet in your car in Virginia, provided you follow a few basic rules and safety measures.

Specifically, there are four angles to consider when discussing the topic of driving with a pet in your vehicle:

  1. General laws concerning the proper care of animals.
  2. Traffic laws, especially in regards to reckless and distracted driving.
  3. Personal injury laws, both in regards to crashes involving your pet (i.e. where they’re injured) and crashes caused by your pet.
  4. Local laws which may differ from the laws outlined in the three points above.

The second and third of these four legal angles are the source of most of the ambiguity surrounding this topic.

This is because these laws may be interpreted in ways that assign negligence to the driver due to their failure to restrain their animal.

We’ll outline the basics of these four angles below, but an important topic to consider first is the common sense approach to driving with an animal in your vehicle.

Safety First: A Common Sense Approach to the Problem

The recommended action by almost every government or regulating body (and most attorneys) is simply to take proper steps to restrain your animal in your vehicle before you hit the road.

The Virginia DMV provides the best summary of this issue on their website:

Pets, like children, should be safely restrained while traveling. All it takes is a sudden stop or turn to seriously injure your pet, not to mention what could happen if you got in an accident.

Unrestrained pets are also the cause of many accidents, as they can distract or even interfere with the driver’s ability to control the vehicle.

Today’s pet restraints and car seats quickly and easily attach to a vehicle’s seat belt, and provide plenty of freedom for the pet to sit up or lie down.

Wire cages or plastic crates are also excellent choices to protect pets while traveling, as they shield pets from falling objects.

Pets in Cars — Virginia Department of Motor Vehicles

While recent studies have shown that driving with an unrestrained pet is a rather common occurrence, it’s still also a fact that driving with an unrestrained animal is dangerous and distracting.

Always place your animal in a proper crate, harness, or similar device before you hit the road.

Otherwise, you may find yourself on the receiving end of a traffic ticket, misdemeanor charge, personal injury case, or other similarly unpleasant experience.

4 Topics Worth Considering When Driving with Your Pet in the Car

Jack Russell Terrier in lounger dog bed. The pet enjoying a car ride

As we noted above, there are four general topics worth considering when you drive with your pet in the vehicle.

Generally speaking, these topics all revolve around the different ways you can keep yourself and your pet safe while you’re on the road.

1. Proper Care of Animals

One of the most relevant laws to this discussion appears in a portion of the Virginia Code on agriculture:

Each owner shall provide for each of his companion animals (1) adequate feed, (2) adequate water, (3) adequate shelter, (4) adequate space in the primary enclosure depending on the animal’s age, size, species, and weight, (5) adequate exercise, (6) adequate care, treatment, and transportation, and (7) veterinary care when needed to prevent suffering or disease transmission.

Summarized from Va. Code § 3.2-6503

Point 6 is particularly relevant to this topic, as it stresses the importance of “adequately” caring for the well-being of your animals.

As outlined in a different section of the Virginia Code:

“Adequate care” or “care” means the responsible practice of good animal husbandry, handling, production, management, confinement, feeding, watering, protection, shelter, transportation, [and] treatment…appropriate for the age, species, condition, size and type of the animal.

Va. Code § 3.2-6500

Further:

“Treatment” or “adequate treatment” means the responsible handling or transportation of animals in the person’s ownership, custody or charge, appropriate for the age, species, condition, size and type of the animal.

Va. Code § 3.2-6500

Taken together, these sections mean that all animals must be adequately and reasonably restrained whenever they are being transported in vehicles.

Since the law doesn’t note any specific measures, most instances of transporting an animal would fall under the common sense guidelines outlined above.

This means that instances of driving with an unrestrained animal will be resolved on a case-by-case basis, as based on a common-sense interpretation of the above-quoted laws.

For example, you should never let a 70-pound dog sit in your lap while you’re driving, as doing so would be irresponsible and could endanger both your life and your pet’s.

On the other hand, restraining your dog in a crate in the back seat would likely count as responsible, since it’s a best practice recommended by the Virginia DMV.

Any cases that fall between these two extremes would likely be left to the judge’s discretion.

Finally, note that failing to follow the rules in this section actually counts as a misdemeanor, and is punishable with fines of up to $1,000.

2. Traffic Laws and Reckless Driving

Virginia’s laws on reckless driving can also be interpreted in ways that assign negligence to individuals who are transporting unrestrained pets.

For example, Virginia Code § 46.2-852 states the Commonwealth’s general rule on reckless driving as:

“Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.”

Va. Code § 46.2-852

Under this law, various dangerous acts such as drowsy driving or otherwise driving in an odd manner could be punished as reckless driving depending on the facts of the case and the seriousness of the offense.

Similarly, driving with an unrestrained animal in the car could be charged as reckless driving under this law, since the only requirement is that you are driving in a manner that endangers the “life, limb or property of any person.”

For example, if your animal gets behind your break pedal or otherwise impairs your ability to drive safely, an officer could pull you over and charge you with reckless driving.

Finally, and as expanded on in the next section, if your animal’s actions result in an accident, the responding officer may choose to write you a ticket for reckless driving.

Such a ticket could endanger any potential insurance claim or personal injury case you may file as a result of the accident.

3. Personal Injury Claims and Accidents Involving Pets

It’s relatively easy to imagine how having a pet in your car can lead to distractions or possibly even a crash.

You might find yourself petting your animal or feeding it treats, both of which are actions that could distract you while you’re driving.

However, much like with texting and driving, these actions can significantly impact your ability to safely drive on the roadway.

For example, by petting your animal you’re taking your hands off the wheel, looking at the animal, and not thinking about the current state of the cars around you.

These factors can significantly increase the risk of being involved in an accident, as well as the risk of yourself or your pet becoming injured.

Additionally, you should keep in mind that pets count as property in Virginia.

This means that, in the event your pet is injured or killed in an accident, you are only entitled to the fair market value of your pet (or compensation for it’s injuries).

In this way, if you failed to properly restrain your animal (as outlined above), an argument could be made against you that you failed to “adequately” protect your animal from harm, thus ruining your claim for damages.

For these reasons, the presence of an unrestrained pet in your vehicle (or even a pet that’s restrained in the front seat) can potentially harm any insurance or personal injury claims you may submit.

Remember, the most important thing you can do whenever you’re traveling with your pet is to make sure you have your full attention on the road and not your fluffy friend.

For this reason, it’s highly recommended that you keep your animal restrained in the back seat whenever you’re driving on a Virginia road.

4. Local Laws and Guidelines

Finally, and most importantly, you should remember that your local laws may say something different when it comes to driving with animals in your vehicle.

For example, a city or county could enact a law stating that all pets must be safely restrained in cages or harnesses, meaning that anyone driving in or through that jurisdiction would have to follow this local law.

Practically speaking, it’s impossible for the average person to keep track of every individual locality’s laws on driving with an animal in the car, so it’s wise (and highly recommended) that Virginia drivers simply restrain their animals whenever they decide to hit the road.

Conclusion

Two dogs are out facing with a smile from the window of the car, pet in the car concept

In general, driving with a pet in your car is perfectly legal in Virginia, provided you follow a few basic rules and best practices.

Most government agencies, regulatory bodies, and attorneys will recommend that you restrain your pet in the back seat of your vehicle using a crate, harness, or similar method.

This is because having an unrestrained pet in your vehicle increases the chance that you’ll be involved in an accident.

Further, driving with an unrestrained animal will sometimes result in criminal charges or claims of negligence.

For example, Virginia’s reckless driving statute and the state’s laws on the proper care and transportation of animals could be interpreted to find you negligent if your drive with your pet unrestrained in the vehicle.

These situations are usually interpreted on a case by case basis.

For these reasons, you should always safely restrain your pet before you hit the road, as the risks of failing to do so will almost always outweigh the rewards.

If you receive a ticket due to an unrestrained pet, or you experience an accident involving your pet, you should speak with an attorney immediately.

As we outlined in the sections above, these are serious events that can have long-term effects on your life.

By consulting with an experienced attorney, you can get the help you need to resolve the matter both quickly and efficiently.

Relevant Laws

Further Reading

Other Resources

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Virginia Seatbelt and Car Seat Laws: A Quick Guide https://tingenwilliams.com/2020/virginia-seatbelt-and-car-seat-laws/45471 Wed, 11 Nov 2020 14:55:00 +0000 https://tingenwilliams.com/?p=45471 Virginia’s seatbelt and car seat laws were designed to keep you and your children safe while you travel throughout the Commonwealth.

As seatbelt and car seat technology has changed over the past decade, so too has Virginia updated its laws surrounding these safety measures.

While the CDC reports that using a seatbelt can reduce your risk of death in a crash by 45%, this statistic is only true as long as you follow all the relevant guidelines and laws surrounding seatbelt use.

In this article, we’ll quickly cover the absolute basics of Virginia’s seatbelt and car seat laws, as well as the penalties you should expect if you’re caught breaking these laws.

Remember, however, that an article is no substitute for the direction of an experienced Virginia traffic attorney.

Only a lawyer who has reviewed the full details of your case can give you the answers you need to resolve a traffic case in the Commonwealth.

Virginia Seatbelt Laws

Woman driver buckle up the seat belt before driving car

Put simply, Virginia law states that everyone should use a seatbelt or other proper restraint device every time they ride in a vehicle.

The one exception to this rule is that passengers over the age of 18 who are riding in the back seat of a vehicle are not required to wear a seatbelt, though it’s still wise to do so.

The Virginia DMV has a wonderful FAQ page on their website that answers most of the questions Virginia residents often have about seatbelt laws, so we highly recommend reading that as a starting point in your research.

However, in general Virginia’s seatbelt laws boil down to a few key points:

  • Everyone riding in the front seat of a vehicle must wear a seatbelt at all times while the vehicle is in motion, regardless of age.
  • Minors (under the age of 18) who are riding in the back seat of a vehicle must be “properly secured by an appropriate safety belt system…consisting of lap belts, shoulder harnesses, [or] combinations thereof.”
  • Children up to the age of eight must be secured in the back seat of the car with a proper child restraint device that meets the standards of the U.S. Department of Transportation. This restraint device must face backwards until (1) the child reaches two years of age, or (2) the child reaches the minimum weight limit prescribed by the manufacturer of the device.

While there are certainly exceptions and nuances to these rules (such as for busses or cars without back seats), most of the general rules fall under one of these three points.

Penalties for Breaking Virginia’s Seatbelt Laws

The penalties for breaking Virginia’s seatbelt laws are actually divided into two main categories:

  • For adults over the age of 18, Virginia’s seatbelt laws count as secondary enforcement laws. This means that an officer cannot pull you over solely because you weren’t wearing a seatbelt. However, if they pull you over for a different reason (such as speeding) they can also write you a ticket for not wearing a seatbelt. The penalty for this infraction is usually a fine of around $25.
  • For passengers and drivers under the age of 18, the infraction is a primary offense. This means that an officer can pull you over for that violation alone. The penalties for this infraction can range from $25 to $50, depending on factors such as the officer, the offense, and the age of the unrestrained child.

Finally, note that violating these laws only counts as an infraction, not a crime. Further, violations will not result in demerit points on your driver’s license.

Virginia Car Seat Laws

Child in a baby car seat

The Virginia Code also includes several laws regarding the use of child safety seats and restraints.

These laws generally center on reinforcing a few key issues as they are described in the general seatbelt law as described above:

  • Children must be restrained in car seats or a similar restraint device until the age of eight.
  • This device must be rear-facing until the child is either (1) two years of age, or (2) over the minimum weight limit for a forward-facing child restraint device, as proscribed by the manufacturer.
  • The device shall be placed in the back seat of the vehicle. If the vehicle does not have a back seat, the device shall be placed in the front seat only if the passenger side airbag has been deactivated.
  • The driver is responsible for ensuring that any passengers under the age of 18 are secured in a child restraint device.

The DMV’s Four Car Seat Stages

As a shorthand for the laws outlined above, the Virginia DMV summarizes these laws and categorizes them into four general stages that children must go through in regards to car seats and other restraints:

  • Stage 1: Rear-Facing Car Seats — All infants and toddlers should ride in a rear-facing car seat situated in the back seat of the vehicle. They should stay in this rear-facing seat until they are either (1) two years of age, or (2) over the minimum weight limit for the forward-facing version of their seat.
  • Stage 2: Forward-Facing Car Seats — Once your toddler has outgrown their rear-facing car seat, they should be transitioned to a forward-facing car seat with a harness. Your child should remain in this car seat for as long as possible. Once they reach the maximum weight (usually greater than 20 pounds) or height allowed by the car seat, then they should transition to the next stage.
  • Stage 3: Belt-Positioning Booster Seats — The final stage is for school-aged children—those that have outgrown their forward-facing seats. Belt-positioning booster seats are designed to help the seat belt properly restrain your child in the event of an accident. Most children will fit in a seat without the help of a booster once they are 4 foot 9 inches tall, or between 8 and 12 years old. Once your child fits properly within the vehicle seat belt, they should remain in the back seat until they are 13 years old.
  • Stage 4: Seat Belts — Finally, remember that children must wear a seatbelt at all times until they reach 18 years of age (as outlined in the general seatbelt section above). At this point, they may choose whether or not to wear a seatbelt in the rear of a vehicle, though it’s still highly advisable that they do so.

By following these four stages, you can both ensure the safety of your child and rest easy in knowing that you’re following all of the relevant laws.

Penalties for Violating Virginia’s Child Restraint Laws

The Virginia Code is actually quite specific when it comes to violations of the child restraint laws:

Any person, including those subject to jurisdiction of a juvenile and domestic relations district court, found guilty of violating this article shall be subject to a civil penalty of $50, which shall not be suspended in whole or in part…a second or subsequent [offense]… shall be subject to a civil penalty of up to $500.

Virginia Code § 46.2-1098

As you can see, the penalties for allowing a child to ride unrestrained are higher than those applied to adults.

Similarly, the penalties are significantly higher for individuals who commit a second or subsequent offense.

Exceptions to Virginia’s Seatbelt and Car Seat Laws

There are a few exceptions to Virginia’s seatbelt safety laws.

Generally, these exceptions center on situations where wearing a seatbelt would be impractical or impossible.

As a few of the most common exceptions you should watch out for, Virginia’s seatbelt and child restraint laws do not apply to:

  • Individuals with Medical Conditions — Any person for whom a licensed physician determines that the use of such safety belt system would be impractical by reason of such person’s physical condition or other medical reason.
  • Law Enforcement — Any law-enforcement officer transporting persons in custody or traveling in circumstances which render the wearing of such safety belt system impractical.
  • Mail Carriers — Any person while driving a motor vehicle and performing the duties of a rural mail carrier for the United States Postal Service.
  • Newspaper Carriers — Any person driving a motor vehicle and performing the duties of a rural newspaper route carrier, newspaper bundle hauler or newspaper rack carrier.
  • Municipal Workers — Personnel of commercial or municipal vehicles while actually engaged in the collection or delivery of goods or services, such as solid waste, where such collection or delivery requires the personnel to exit and enter the cab of the vehicle with such frequency and regularity so as to render the use of safety belt systems impractical and the safety benefits derived therefrom insignificant.
  • Certain Transportation Vehicles — Some forms of transportation, such as taxis, school buses, executive sedans, and limousines, are exempt from Virginia’s normal seat belt laws.

Note, however, that it’s still wise to wear a seatbelt at all times while in a moving vehicle, regardless of the exceptions that exist in Virginia’s laws.

Conclusion

Teddy bear fastened in the back seat of a car

As with all laws surrounding public safety, it’s best to err on the side of caution when it comes to seatbelts and other restraint devices.

For example, while Virginia law doesn’t require that adults riding in the back seat wear a seatbelt, it’s still wise to do so.

Similarly, even if your child technically meets the requirements for a forward-facing car seat, it still might be smart to keep them in a rear-facing seat for a little longer, if only to be on the safe side.

If you are concerned about whether or not your child is in the proper car seat, or if it is installed correctly, you can contact your local fire department and talk to a car seat expert to receive help.

Car seats and seatbelts have been proven to save lives, so buckle up for safety!

Finally, if you’re cited for driving without a seatbelt you’ll have to pay a small fine, but there likely won’t be any other negative effects on your life (such as points on your driving record).

Relevant Laws

Further Reading

Other Resources

  • The Four Stages of Car Seats, Virginia DMV — A quick summary of the different child restraint stages as outlined in Virginia law.
  • Seat Belt Frequently Asked Questions, Virginia DMV — A quick rundown of several frequently asked questions in regards to Virginia’s seat belt laws.
  • 2019 Seat Belt use in Virginia, Old Dominion University for the Virginia Highway Safety Office — A report prepared for the Virginia Highway Safety Office by professors at ODU on seat belt use in Virginia. This report documents produce data regarding the seat belt use rate in Virginia. It includes a great deal of information about how Virginia residents use their seatbelts, the fatality rate for individuals without seatbelts, and other associated data.
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How to Set Up a Trust in Virginia https://tingenwilliams.com/2020/how-to-set-up-a-trust-in-virginia/46496 Wed, 11 Nov 2020 14:35:00 +0000 https://tingenwilliams.com/?p=46496 While it may seem a bit intimidating at first, it’s actually surprisingly easy to set up a trust in Virginia, provided you have the help of an experienced attorney or financial advisor.

Trusts are useful estate planning tools that allow you to safely and efficiently hold and transfer personal assets and property.

Most importantly, trusts can help mitigate the long and frustrating probate procedures common for larger estates.

In this article, we’ll briefly explore the basics of how you can set up a trust in Virginia.

Note, however, that it’s often wise to speak with an attorney or financial advisor first before you start making any hard plans relating to your estate or a trust.

Only a professional who has reviewed your case can provide actionable advice on whether or not a trust is the right legal option for you.

Types of Virginia Trusts

Dapper senior man on the phone with his trust attorney to discuss setting up a trust in Virginia.

As you might imagine, the first step in setting up a trust in Virginia is often to figure out what type of trust you want to create.

Each trust type has unique qualities that can either help or hurt your specific estate planning needs, so it’s important for you to choose the correct form of trust the first time.

While many different types of trusts are valid in Virginia, there are a few common trust types that you should be aware of when planning out your estate:

1. Living Trusts — A living trust is a legal document that places your assets, such as your house or your car, into a trust created for your benefit during your lifetime.

Upon your death, the assets in your living trust will be distributed wherever you’d like. Living trusts are the most common form of trust in Virginia.

2. Charitable Trusts — Basic charitable trusts are formed with the intention of donating the trust principle, income, or property to your designated charity.

Charitable trusts are irrevocable, and are established with the intention of funding a qualified charitable organization.

While some charitable trusts are created primarily for charitable causes, there are also tax benefits if it’s properly established.

3. Education Trusts — You can form an education trust with the intention of funding the academic pursuits of any named beneficiaries.

When forming this type of trust, you must indicate that the assets are intended for educational purposes only, and you must name your trustee, beneficiary, and how the trust assets should be used.

4. Discretionary Trusts — Unlike other trusts, a discretionary trust operates under the direction of your appointed trustee.

You delegate complete or limited control to your trustee, who then manages the trust according to the trust terms.

Transactions such as withdrawing income or distributing property to your beneficiaries are performed by your trustee.

5. Child Trusts — By definition, a child’s trust is a trust that is left to a child upon death, but is managed by the trustee until the child comes of age to inherit.

In accordance with Virginia inheritance law, children younger than 18 years of age cannot inherit property that exceeds $2,500-$5,000, dependent upon the type of property inherited.

Therefore, your trust must be managed by a third party until your beneficiary is 18 years-old.

What’s a revocable or an irrevocable trust?

Most (but not all) trusts can be either revocable or irrevocable depending on how you choose to structure it.

Put simply, the difference between the two is that a revocable trust can be changed, revoked, or terminated at any point during your life, while an irrevocable trust is set in stone and cannot be altered except for in very specific circumstances.

Generally speaking, revocable trusts are the favored option for most estate planning cases due to their general utility, though irrevocable trusts are still beneficial in some situations.

For example, some individuals may choose to create an irrevocable charitable trust to earn a significant income tax break or to protect their assets from being exploited by family members in the future.

As another example, creditors may be able to access assets held in a revocable trust, while the assets in an irrevocable trust are generally protected from creditors and other similar parties.

Whether or not your chosen trust type is revocable or irrevocable is an important topic you should discuss with an attorney.

5 Requirements to Set Up a Trust in Virginia

Mature couple reviewing their trust documents on an ipad in the living room

Most of Virginia follows the Uniform Trust Code, as outlined in the Virginia Code.

The Uniform Trust Code contains two specific laws that are relevant to our discussion on setting up a trust in Virginia:

We’ll outline the basics of each below.

Va. Code § 64.2-719. Methods of Creating a Trust

This section notes that a Virginia trust may be created through one of four methods:

  1. Transfer of property to another person as trustee during the settlor’s lifetime by the settlor or by the settlor’s agent…under a power of attorney that expressly authorizes the agent to create a trust on the settlor’s behalf or by will or other disposition taking effect upon the settlor’s death;
  2. Declaration by the owner of the property that the owner holds identifiable property as trustee;
  3. Exercise of a power of appointment in favor of a trustee; or,
  4. A conservator acting in accordance with Virginia’s normal estate planning rules.

Va. Code § 64.2-720. Requirements for Creation

This section further notes that a Virginia trust may only be created if:

  1. The settlor (or the settler’s agent) has capacity to create a trust;
  2. The settlor or his agent indicates an intention to create the trust (preferably in writing);
  3. The trust has a definite beneficiary or is (a) a charitable trust, (b) a trust for the care of an animal, as provided in § 64.2-726; or (c) a trust for a non-charitable purpose, as provided in § 64.2-727;
  4. The trustee has duties to perform; and,
  5. The same person is not the sole trustee and sole beneficiary.

So long as you and your attorney meet these five requirements in your trust document, you will be able to create a valid Virginia trust.

Note, however, that the details of some of these requirements may change depending on the type of Virginia trust you want to set up.

While the same basic requirements will stay the same, the implementation may be different on a case-by-case basis.

For this reason, it’s highly recommended that you speak with an attorney before you proceed with setting up a trust, especially if you’re planning to create anything other than a revocable living trust.

How to Draft a Basic Trust Agreement

Virginia trust document concept

Once you’ve chosen your type of trust and understand the requirements, you can start creating it.

The primary, and perhaps most important, step in establishing your trust is drafting a basic trust agreement.

A trust agreement is a legal document that designates the settlor/grantor, the trustee, and the beneficiaries of your new trust.

Furthermore, it outlines how the you’d like the trust assets to be managed and distributed both during your life and after your death.

This legal document should set forth:

  • Your name, as the settlor of the will.
  • Who you want to name as the beneficiaries to your assets.
  • How you will split your assets and trust income to distribute amongst your listed beneficiaries.
  • Who you want to name as the trustee(s).

To reiterate, the person you name as your trustee will normally manage your trust only once you pass away.

Before that, you are the trustee as well as the settlor. Basically, you remain in control of the assets until either you die or put the assets into a trust that requires you to hand over control.

Your trust agreement should also outline both how the trustee should distribute the income from the trust assets while the settlor is alive and once they die.

Notarizing Your Trust

Once you prepare your document, it’s generally recommended, though not legally required, to sign it in front of a notary.

Make sure to appear before the notary with an unsigned document.

In Virginia, the notary must watch you sign it in front of them to legitimize the document.

You can find a notary at your attorney’s office or a local financial institution.

How to Transfer the Required Assets into the Trust

In addition to creating the trust agreement, you must also fund the trust. After all, your trust is only valid once you put assets into it.

As such, this step involves figuring out what you own and what you will transfer to your trust.

The process to fund your trust will generally depend on the type of property you want to transfer.

If you’d like to transfer real estate to your trust, you have to execute a deed the transfers the title to the property of the trust.

Real estate property includes any homes you own, including second homes or rental properties.

You may also transfer personal property to your trust.

This includes assets like motor vehicles, boats, RVs, airplanes and mobile homes. Your personal property also includes stocks and bonds.

In order to transfer these types of assets, you will need a title document, which you should transfer to the trust.

You can transfer all other properties which don’t have title documents by simply writing a description of the property you wish to transfer.

For example, you could list “all of my household goods” or “the entirety of my watch collection,” which you must then make sure to transfer to the trust.

Conclusion

Focused senior woman on her laptop researching how to set up a trust in Virginia.

The first step to setting up a trust in Virginia is often to figure out which type of trust you’d like to create.

The most common type is a revocable living trust, but it’s often wise to discuss other options with your attorney or a financial advisor.

Once you’ve decided on the type of trust you want to create, all you have to do is draft the necessary documents and fund the trust with your current assets.

It’s important to note, however, that creating a legally strong trust is a little more complicated than it might seem at first glance.

For this reason, it’s strongly recommended that you speak with an attorney before you make any final decisions about how you’d like to set up your trust.

Only an attorney who’s reviewed your entire case can give you the advice you need to set up a trust the right way.

Relevant Laws

Further Reading

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Trade Secret Basics: How to Protect Your Business’s Most Valuable Assets https://tingenwilliams.com/2020/trade-secret-basics/45399 Tue, 20 Oct 2020 15:28:00 +0000 https://tingenwilliams.com/?p=45399 Over the past several years, businesses have increasingly turned to trade secrets as an effective way to protect confidential information that gives them an edge over the competition.

From mom and pop coffee shops to multinational corporations such as Coca-Cola or Twitter, businesses are recognizing the important benefits that trade secrets offer over other intellectual property classifications such as trademarks, patents, and copyright.

This trend has accelerated since the 1980s with the passing of the Uniform Trade Secrets Act (UTSA) in states throughout the country, and has further accelerated since 2016 with the passing of the Defend Trade Secrets Act (DTSA) at the federal level.

For this reason, it’s important for modern business to understand (1) what trade secrets are, (2) what advantages businesses gain by protecting their valuable information as trade secrets, and (3) the various best practices businesses should follow when implementing and protecting their trade secrets.

In this article, we’ll cover all of these important topics from the perspective of attorneys practicing in Virginia.

What are Trade Secrets?

Blueprints and schematics of a new building or process.

Trade secret laws exist at both the federal and state levels, and generally serve to protect a company’s “secret sauce” from the prying eyes of their competition.

The term “trade secret” has a variety of definitions depending on its use and the scope of the laws which define it.

For example, Virginia’s version of the Uniform Trade Secrets Act (UTSA) defines a trade secret as follows:

“Trade secret” means information, including but not limited to, a formula, pattern, compilation, program, device, method, technique, or process, that:

1. Derives independent economic value, actual or potential, from not being generally know to, and not being readily ascertainably by proper means by, other persons who can obtain economic value from its disclosure or use, and;

2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Va. Code § 59.1-336

The federal Defend Trade Secrets Act of 2016 (DTSA) defines trade secrets in a similar fashion:

As used in this chapter…the term “trade secret” means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if—

(A) the owner thereof has taken reasonable measures to keep such information secret; and,

(B) the information derives independent economic value, actual or potential, from not being generally know to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.

18 U.S.C. § 1839, from Chapter 90–Protection of Trade Secrets

Essential Requirements of a Trade Secret

These definitions, combined with the other definitions enacted at the state and federal level, give rise to a few key requirements for a valid trade secret:

  1. First, the secret should display some degree of novelty that is not readily ascertainable to other people or businesses in the same space. For example, a trade secret could contain special “know-how” derived from independent effort on the business’s part (such as a list of business contacts or a file containing proprietary code).
  2. Second, trade secrets must have economic value, whether actual or potential, and this value must be tied to the information remaining secret. For example, a bakery’s secret cookie recipe may count as a trade secret since the bakery would likely experience economic losses if the bakery across the street started using the exact same recipe.
  3. Third, a trade secret must, by definition, be a secret. This means it is not generally known or readily ascertained by proper means by people who can obtain economic value from its use. If the information is easy to access or common knowledge, then it’s not a secret.
  4. Fourth, the owner must exercise reasonable efforts to maintain secrecy of the information. This means that the business must take reasonable steps to keep the information away from prying eyes. Documents such as non-disclosure or non-compete agreements are common ways to keep your business’s most valuable information secret, especially when combined with technical actions such as locking information behind password-protected accounts or similar measures.

Put simply, trade secrets are novel pieces of information, processes, or tools that give businesses an edge over their competition in a way that would not be viable should the information become public.

What may be Protected as a Trade Secret?

Businesses will often protect their intellectual property by registering as a trademark their name and logo or adding copyright information to their website and print materials.

These trademark and copyright laws exist to protect specific types of intellectual property (such as logos, brand names, and websites) so as to differentiate a business (and its work) from the competition.

In a similar fashion, trade secret laws protect valuable technical or confidential information that your business uses to get a leg up over the competition.

Importantly, the barrier for a piece of information to be a trade secret is actually surprisingly low, meaning that many different types of information can count as a trade secret.

In fact, mere specifications (such as ingredient measurements) and other similar “know-how” can count as trade secrets under the right circumstances.

As a few quick examples, all of the following can be protected under intellectual property law as trade secrets:

  • Chemical formulas and the steps taken to produce them.
  • Recipes, including ingredients, proportions, cooking times, and other techniques.
  • Code, databases, and other technical information that’s central to a business’s core product.
  • Product designs and the steps for producing a particular product.
  • Customer and contact lists, whether digital or on paper.
  • Pricing schedules and other financial information that falls under trade secret laws.
  • Manufacturing techniques and other technical information.
  • Marketing strategies, such as online bid strategies for ads, remarketing campaigns, ad design templates, and more.
  • Negative information, such as knowledge of what doesn’t work in your space or business.

Basically, virtually any information that (1) is novel in nature, (2) has immediate or potential economic value, (3) is not generally known by your competitors, and (4) that the owner has implemented reasonable efforts to keep a secret can count as a trade secret.

As long as it meets these four requirements (as explained in the sections above), the information can count as a trade secret.

Why are Trade Secrets Becoming More Important for Modern Businesses?

Due to a variety of reasons, U.S. businesses have ramped up their focus on trade secrets as a viable way to protect important pieces of intellectual property.

In fact, according to several recent reports, the number of trade secret cases that go to court has risen drastically in the past two decades, with 10% to 30% increases year-over-year from 2000 until around 2017 (at which point the number of cases has remained relatively steady at around 1,000 per year).

While every business certainly chooses to use this form of protection for different reasons, their reasoning largely focuses on a few key advantages trade secrets have over other forms of intellectual property:

  • Ubiquity and Flexibility — Virtually every business already has trade secrets, such as core computer programs, marketing lists, or financial information. Often, this information doesn’t fall into the normal classifications of trademark, patent, or copyright, so many businesses are choosing to protect this information as a trade secret instead. For example, while a patent may not protect a specific algorithm or computer program, such information could likely be protected under current trade secret laws.
  • Reliability — Put simply, it can sometimes be hard (and expensive) to register a trademark, patent, or copyright. By keeping the information in-house, businesses can save money (through attorneys and filing fees) and time (by immediately gaining the protections instead of waiting a year or more for government approval).
  • Security — As a secondary point to the Reliability point above, many businesses also choose to keep things in-house because it allows them to keep the information secret. While patents and copyrights generally require registration and publication, trade secrets are, by their nature, secret. This means that limiting the number of parties involved can proportionally increase the security of the information itself.
  • Longevity — Whereas trademarks, patents, and copyright protections often come with timelines you have to follow for renewal, trade secrets are free from many of the time-base restrictions found in other forms of intellectual property. After all, the information will remain a trade secret as long as you can keep it a secret, so it’s technically possible to keep the information in-house indefinitely (as some businesses, such as Coca-Cola, have done with their secret recipes).
  • Stronger Protections — Finally, it’s important to note that trade secrets can situationally provide stronger protections than other types of intellectual property. For example, in rapidly-changing fields such as digital marketing or other technology-based industries, trade secrets can provide a necessary flexibility of providing protections now rather than later. Similarly, in industries that are based on tradition and long-term protection, trade secrets can provide many protections even after the 20-year limit on patents runs out.

While there are certainly other benefits to trade secrets besides the ones listed above, these five qualities describe the general reason that more and more businesses are choosing to protect their valuable information as trade secrets.

Can I Register a Trade Secret?

Generally speaking, no. Trade secrets are actually the only form of intellectual property that you cannot register with an official U.S. government agency.

Instead, trade secrets are protected through reasonable measures taken by the business itself.

In the event that someone misappropriates or improperly conveys a trade secret to a competitor, the business may bring a private civil case against the individual that leaked the information (and/or the business that accepted it).

An essential element of this case will be whether or not the business took “reasonable measures” to keep the secret safe.

For this reason, and due to the civil nature of such a case, the normal preventive measure of registration is instead replaced with the specific actions a business should take to protect their secrets.

Put another way, your trade secret will only last for as long as you can successfully safeguard it through your own actions, as detailed in the next section.

How to Protect Your Business’s Trade Secrets

Nondisclosure agreement concept with wooden blocks.

If you run a business you most likely have multiple employees or contractors working for you.

You may wonder how you can prevent such groups of people from copying, using, benefiting from, or disclosing your trade secrets without your permission.

The answer is that trade secret laws confer two general protections to businesses:

  1. First, trade secret laws enforce a confidential relationship between the employer and their employees.
  2. Second, trade secret laws protect the business in cases where the knowledge is gained by another party through “improper” means.

Basically, businesses can prevent people from copying, using, or benefiting from their intellectual property by enacting a series of measures meant to keep this intellectual property private.

Basic Precautions to Take with Your Business’s Trade Secrets

You can’t just say that a piece of information is a trade secret and call it a day. Instead, businesses must take proactive actions to safeguard their trade secrets from their competitors.

For this reason, there are several best practices that businesses should follow in regards to protecting their trade secrets.

These best practices generally fall into three broad categories:

  1. Physical Security — Actions you take in the real world to protect secret information, such as locking important documents in a safe or marking such documents as “Confidential.”
  2. Digital and Network Security — Actions you take on your company’s network and online to protect your business’s information, such as enabling two-factor authentication, setting up user permissions for key information, or creating policies that state trade secrets can only be kept locally (and not uploaded anywhere online).
  3. Legal Security — Often the most used precaution, these are actions you take with the advice of an attorney to proactively protect your valuable information through nondisclosure agreements (NDAs), noncompete agreements, and other legal documents.

In most cases, businesses will rely on a combination of all three of these categories to protect their vital information.

As stated above, the most common method is to include NDA or noncompete agreements in your employee onboarding process as a way of limiting their ability to disclose essential information.

Basic network precautions, such as enabling two-factor authentication on email accounts and business CMS portals, are another common method of keeping vital information secret.

Put simply, you need to take basic, affirmative steps to protect your secret in a way that’s easily provable in court.

As we mentioned in the definitions section above, an essential element of a trade secret is the presence of affirmative actions taken to keep the information secret.

Being able to show, in court, that you took these basic steps will be an important element of your case should you have to bring a civil suit against someone who improperly acquired this information.

Advanced Measures to Take with Your Business’s Trade Secrets

Most of the protections you’ll need are covered in the basic precautions section above.

However, there are also a few advanced measures that businesses can take to protect their intellectual property.

Generally, these measures revolve around the idea of introducing a third party into the mix as a way of auditing your existing trade secret protections.

For example, a business that develops and sells a computer program that they claim is a trade secret might hire an independent auditing firm to check how well they’re following their own confidentiality guidelines.

Such a third party could also provide training to your business through seminars, powerpoint presentations, or other similar methods.

Finally, it’s also advisable for businesses to include trade secret training sections in their onboarding documents and exit materials so employees are aware of the specific actions they should (and shouldn’t) take in regards to trade secrets.

How to Deal With Improper Disclosures of Your Trade Secrets

Every state has laws which protect trade secrets from improper disclosure or theft.

Most of these laws are derived from the Uniform Trade Secrets Act (UTSA), a model act drafted by the Uniform Law Commission that has been enacted in 48 states, Washington D.C., Puerto Rico, and the Virgin Islands.

As of Massachusetts’s recent adoption of the act in 2018, only New York and North Carolina have yet to vote the UTSA into law, though New York currently has a bill in the works as of January 8th of 2020.

Under the language in the UTSA adopted by Virginia, for example, businesses may petition the court to enjoin any actual or threatened misappropriation and bring a civil action against the individual who improperly disclosed the information.

In the event that the misappropriation was willful or malicious, the court may also award punitive damages of up to double the amount of damages incurred by the disclosure of the information (up to a cap of $350,000), in addition to reasonable attorney’s fees.

For this reason, it’s wise to speak with an attorney immediately if you believe that someone has improperly disclosed your intellectual property.

Even if this disclosure was unintentional, you can still petition the court to help you keep the information a secret, provided your case meets certain specific requirements.

Conclusion

Two cheerful small business owners smiling and looking at camera while standing at entrance door. Happy mature man and mid woman at entrance of newly opened restaurant with open sign board. Smiling couple welcoming customers to small business shop.

As our economy shifts ever more towards the design and creation of intangible, intellectual property such as designs, programs, and technology, businesses should pay greater attention to the different legal tools available for protecting such ideas and processes.

Trade secrets are an increasingly important tool for protecting such valuable information, primarily due to their flexibility and the relative ease with which companies can implement strong legal safeguards.

In any event, it’s always wise to speak to an attorney if you have any questions about how to best protect your intellectual property as a business owner.

Only an attorney can give you up-to-date information that’s relevant to your specific case and jurisdiction.

Relevant Laws

Further Reading

Other Resources

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Does Embedding a Tweet Count as Copyright Infringement? https://tingenwilliams.com/2020/does-embedding-a-tweet-count-as-copyright-infringement/45352 Tue, 20 Oct 2020 15:01:00 +0000 https://tingenwilliams.com/?p=45352 In general, you should assume that any use of another person’s artistic or creative work counts as copyright infringement unless you have a very specific reason to think otherwise (such as fair use).

For this reason, you should exercise caution when embedding a tweet into your website or blog to avoid a possible infringement.

In this article we’ll discuss the basics of how embedded tweets interact with copyright law.

Picture of the twitter mobile app on a new iphone.

Generally speaking, tweets count as copyrightable material and can therefore be protected by copyright law.

For this reason, you should always treat text-based tweets as no different from the text you would find on someone’s blog or personal website.

In this way, all of the normal rules surrounding the use of copyrightable material will apply when you embed a tweet into your website or blog.

For example, you can’t monetize someone else’s tweet without their permission, and your unauthorized use of another person’s tweet may lead to them bringing an infringement case against you.

Often, the best way to go about embedding a tweet is to simply speak with the original author and ask for permission.

After all, written permission from the copyright owner(s) is the best possible defense in case problems arise in the future.

If you cannot reach the author, or they refuse your request, you may still be able to use the tweet under the doctrine of fair use, provided you meet a few basic requirements (as outlined in the next section).

How to Embed a Tweet Under Fair Use

There are several ways to embed a tweet regardless of whether it’s copyrightable or not.

For example, if someone wanted to embed my tweet about my baking skills (linked above), they would have to either ask for permission or embed the tweet under the doctrine of fair use.

Remember, an original (i.e. copyrightable) tweet cannot be a copy of someone else’s tweet, and it must possess a minimal amount of creativity.

For example, a tweet that simply lists the Seven Wonders of the Ancient World would likely not fall under copyright law, as it would not be an expression of the author’s creativity.

Since facts on their own are not protected by copyright law, tweets that simply state facts are similarly unprotected.

On the contrary, a tweet that contains an opinion on, analysis of, or creative expression (like a photo) about the Seven Wonders of the Ancient World would likely satisfy the requisite amount of creativity.

For example, a tweet that parodies the names of the Seven Wonders of the Ancient World by making them sound like breeds of cats would most likely fall under copyright law, and other users would have to be careful about embedding this tweet in their websites.

Twitter’s Terms of Service page affirms that an author will retain their rights to any content they submit, post, or display on the platform, including content containing videos and photos.

By posting content on the platform, users only grant Twitter a license to redistribute the content on Twitter (through the use of retweets and other similar actions).

For this reason, individuals retain all other rights pertaining to their creative works, meaning that the only person who can give you permission to use a tweet is the person who wrote the tweet in the first place.

Embedding Tweets Under Fair Use

As we’ve noted in other articles on fair use, the only way to establish whether a particular use of copyrightable material counts as fair use is to take it to federal court.

Important notes: Copyright owners who share content online are not providing you a license solely because they post it online. Second, simply because the content is online does not make it fair use for you to use.

Importantly, judges will always use four well-established factors to determine the eligibility of a fair use claim:

  1. The purpose and character of the use, including whether such use is commercial in nature or for nonprofit educational purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use on the potential market for or value of the copyrighted work.

When considering whether or not to embed a tweet into your website, you should be aware of these factors and consult with an attorney if you have questions.

For example, if you embed a tweet into an educational website that is not commercial in nature, your use would likely fall under the first factor, but the fair use analysis requires weighing the other factors, too.

Similarly, embedding information that is more factual, relating to the news for example, for your own commentary or news reporting purposes would lean in favor of fair use as well.

Remember, there are four factors, and the court weighs ALL of them, so just because one factor leans your way does not mean you have a fair use.

Remember, fair use is simply a defense you can claim in court, so the final determination really comes down to how well you can argue your case in court.

If the judge does not find that your use is a fair one, then you have admitted you copied, and it practically amounts to a matter of counting the damages. Consult with an attorney before citing fair use.

For this reason, embedding a tweet will always be a risk that can only be mitigated by following best practices or asking the copyright holder’s permission first.

What About Images?

Images throw a curveball into the mix when it comes to Twitter and copyright law.

Images almost always count as copyrightable material, but finding out the owner of the copyright so you can request permission to distribute the tweet can sometimes be a bit difficult.

For example, if I took a photo of an apple spice cake (as seen above) and posted it on Twitter, I would still own the copyright to the image, but I would be licensing it to Twitter for distribution on its platform (i.e. retweets).

However, if someone were to download or embed my tweet (and/or the image contained within) they might infringe on my copyright depending on how and why they use the content (such as if they set my image as the featured image on a blog post).

Put simply, this “copyright-ception” means twice the potential licenses necessary, as you’ll have to contend with both the copyright issues of the tweet itself and the copyright issues surrounding the image contained within the tweet.

Case Example: Justin Goldman v. Breibart News Network, LLC et. al.

A famous example of copyright infringement based on the unauthorized use of an image is the 2016 case of Justin Goldman v. Breibart News Network.

In 2016, Goldman took a photograph of Tom Brady, a famous NFL quarterback, and Danny Ainge, the president and manager of the Boston Celtics.

Goldman then posted this photo on his Snapchat Story.

The picture itself ended up being newsworthy, as it portrayed two highly popular public figures who would not normally cross paths.

For this reason, the photo went viral, and several users took the photo from Snapchat and posted it to Twitter.

Then, a handful of online publications such as Breibart, Yahoo, and The Boston Globe took tweets containing Goldman’s photo and embedded them in their news stories without first receiving permission from Goldman, the original copyright holder.

As a result, Goldman sued these publications, arguing that they infringed on his copyright by embedding tweets with the original image.

Judge Katherine Forrest, the federal judge of the Southern District of New York, oversaw the case, and ultimately ruled in Goldman’s favor.

Judge Forrest based her decision on two premises:

  1. Goldman’s picture was substantial in nature; and,
  2. The publications did not properly license the image through normal copyright methods.

Put simply, the news publications did not use the photo to merely support the articles. Rather, the news articles were about Goldman’s photo itself.

Furthermore, Judge Forrest ruled that it didn’t matter that the publications were simply embedding the tweet and not downloading and re-uploading the photos on their own servers.

She ruled that in embedding the tweet, the publications engaged in a “technical process” that violated Goldman’s “exclusive display right” anyways.

That is why many news sites will ask individuals on Twitter if they can use their images as part of their news stories.

By doing so, they can make sure to avoid lawsuits like Goldman’s.

Case Example: McGucken v. Newsweek LLC

Also in the Second Circuit, in the Southern District Court of New York, Judge Failla rendered an opinion at the motion to dismiss stage regarding embedding content via Instagram’s platform on June 1, 2020.

Elliot McGucken is a photographer who captures landscapes, and Newsweek happened to run a story in March 2019 about Death Valley and embedded one of McGucken’s images.

Newsweek tried to dismiss the case citing that it had a valid sublicense because the content had to be licensed to Instagram, and Newsweek claimed it then received its sublicense from Instagram.

This literally amounts to the argument, it’s on the Internet, so I had permission to use it.

They also argued if that weren’t true then they had fair use as a defense.

Instagram’s terms of service were referenced where the Court found the license language only granted Instagram a license to display the content, and no sublicense was expressly mentioned.

There needed to be some language that authorized Newsweek’s sublicense or there needed to be an implied license, but the Court found an implied license didn’t exist because “an implied license can only exist where an author creates a copyrighted work with knowledge and intent that the work would be used by another for a specific purpose.”

See SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 317 (S.D.N.Y. 2000)

Newsweek’s only hope was a fair use argument. The Court cited Cariou v. Prince as one of the more recent fair use cases in the Second Circuit with a motion to dismiss.

The Court found the photo was not transformative, and the photo was not the focus of the article, so the purpose of news reporting was Death Valley and not the photograph by McGucken of Death Valley.

This nuance is important because creators can’t tangentially use images that merely relate to content in blog posts or streams, they must actively be engaging and commenting on the content that’s embedded under this Court’s logic.

In this case, Newsweek could have asked for a license and did not do so.

Not only did the factors lean in favor of McGucken, but he was also able to claim statutory damages because the copyright was registered properly, and Newsweek denied McGucken’s cease and desist request, so the court found the infringement was willful.

No damages were because the case was at the motion to dismiss stage only, but enhanced damages were made available for plaintiff to claim.

Conclusion

Business man or freelancer hand typing on laptop computer keyboard

 The guidelines that confirm whether or not a tweet is copyrightable are complicated and ever-evolving.

Generally, a tweet that contains a minimal amount of creativity is considered copyrightable.

Notably, tweets which simply state facts are not copyrightable, while tweets which include original analysis, commentary, or critique generally are.

Further, recent lawsuits have shown that the unauthorized use of a tweet containing an image may count as copyright infringement.

As such, you should be very careful in embedding a tweet that includes an image of which you are not the original author.

To err on the safe side, you should always approach tweets in the same way you would treat a blog post, article, or picture on another site.

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7 Website Legal Issues Small Business Owners Should Avoid https://tingenwilliams.com/2020/7-website-legal-issues/44546 Mon, 24 Aug 2020 15:58:00 +0000 https://tingenwilliams.com/?p=44546 In today’s digital climate, a website is a must-have for almost all small businesses.

It can be a great way to allow customers to get to know your business, build a following, and spread important information.

However, creating and maintaining a legally protected website isn’t quite as easy as it first might seem.

In fact, there are several common legal issues that small business owners should know about before they launch their website.

In this article we’ll discuss seven of these common issues so you’ll know what to watch out for.

However, it’s always a best practice to have a lawyer review your work before you run into a lawsuit.

Remember, you should always contact an attorney if you are unsure if your business and its website are fully protected.

1. Missing Disclaimers

TW Legal Disclaimer Page Screenshot 2020 08 24
A screenshot of our Legal Disclaimer page, taken on August 24th, 2020.

Website disclaimers are legal notices that cover some of the key legal issues that arise from operating a website.

They are different from your terms of use or privacy policy pages in that they specifically disclaim liability to certain issues that may arise as a result of a user interacting with your website.

Importantly, disclaimers are often custom-tailored to the information provided by your business or its website.

For example, our website has a Legal Disclaimer page where we talk about how our articles may contain legal information, but users should not misconstrue this general information as legal advice.

Similarly, a personal trainer’s website may have a legal disclaimer which states “I disclaim liability should my visitors use these workouts without a spotter or proper protective equipment,” while a chef’s recipe website may contain a disclaimer saying that he isn’t responsible if someone messes up a recipe and gets food poisoning.

Or, more commonly, websites that link to other pages will disclaim liability to any information found on these third-party sites.

Regardless of how you use them, you can place disclaimers anywhere on your website.

You’ll generally find them in pop-ups, at the tops of articles, or somewhere in the website footer.

2. No Terms of Use Page

TW Terms of Service Page Screenshot 2020 08 24
A screenshot of our Terms of Service page, taken August 24th, 2020.

Your terms of use page is, from a legal standpoint, the most important page on your website.

A terms of use is an agreement that users must agree to and abide by in order to use your website, service, app, etc.

Generally, terms of use are split between (1) actions that users take on your website without being logged in, and (2) actions that users take after they make an account and log in.

For example, your terms of use could explain the rules surrounding your blog or explain the technology surrounding a chat-bot you use to answer user questions (“we use this program and they collect analytics data for us”).

At a bare minimum, your terms of use page should include basic information such as (1) who owns and/or manages the website, (2) how a user could get in contact with that person or business, and (3) a notice that the person or business is claiming copyright ownership over all of the intellectual property on the website.

You should also detail your security measures, data collection policies, and other assorted ways that your website “works” with user data.

Finally, and most importantly, make sure there is a link to this page on every page of your website. The easiest way to do this is to place it in the footer.

3. Actions that Breach a User’s Privacy

TW Privacy Policy Page Screenshot 2020 08 24
A screenshot of our Privacy Policy page, taken August 24th, 2020.

Discussions in the media and among politicians have increasingly focused on how businesses collect and use consumer data.

For this reason, a privacy policy is a crucial part of any business’s website.

In its simplest version, a privacy policy explains to the visitor what information your website collects, how it collects it, and how your website will store this data.

Generally, if you are going to use cookies or track any information such as an IP address, you need to have the consent of the user.

Once you do start collecting data, you should also make sure it is secure.

Many businesses encrypt the information they collect.

Users must also be allowed to easily contact someone in your business and have their information removed, or “forgotten.”

In general, these guidelines vary greatly between businesses and websites. The more complex your website is, the more advanced your privacy policy will be.

This is especially true if your website contains an e-commerce aspect.

Finally, you should also be aware of industry specific restrictions such as HIPAA or the Rules of Professional Conduct used by attorneys.

Always check with other professionals in your field to make sure you’re following industry best practices.

4. Unintentional Copyright Infringement

TW Footer Screenshot with Copyright Notice 2020 08 24
Screenshot of our footer with our copyright notice in a red box, taken August 24th, 2020.

Business owners will sometimes unknowingly infringe on someone else’s copyright when compiling their websites.

As you source pictures, text, and video for your website, make sure to never assume this content is part of the public domain.

Using copyrightable content as your own will leave you vulnerable to infringement lawsuits, so it’s wise to double check that all of your marketing assets are truly original before you use them on your website.

Often, it may be simpler to use content in the public domain, or to contact the owners of the copyrightable content to ask for express permission.

Note as well that being cautious of copyrights goes both ways.

You should always take steps to protect your own intellectual property from copyright infringement.

Basic steps such as adding a copyright notice to the bottom of your page or adding sourcing information to any images you use can help strengthen your case should someone choose to steal your work.

5. Unintentional Trademark Infringement

Designing a Trademark

Ranging from logos to domain names, unintentional trademark infringement is actually rather common for new businesses.

Under U.S. trademark law, you may be infringing on another person’s trademark if your domain name is “confusingly similar” to another business’s, provided they operate in the same general industry as you.

For example, Delta Airlines (delta.com) and Delta Faucets (deltafaucet.com) may share a similar name, but their domain names and industries set them apart.

After all, no reasonable person would expect to buy a faucet from the Delta Airlines website.

However, if another aviation business chose to register the domain name deltaairlines.com, they would likely be infringing on Delta Airlines’ trademark.

This is especially important for entrepreneurs who choose to create a website before they fully settle the business formation side of things.

Since such business owners are developing their website alongside their business, they will sometimes accidentally use someone else’s name, logo, or trademark as their own, either by failing to perform a full trademark search or by using logo templates or other online tools to generate their content.

In general, it’s wise to double check for confusingly similar brands before you buy a domain, design a logo, or choose a specific name for your brand.

6. Online Defamation

Man working on his business at home

Defamation, in its simplest terms, is a statement that injures a third party’s reputation in a way that incurs damages.

For example, if a newspaper publishes a poorly researched, false article about a local businessman, and that businessman loses revenue as a result of this article, the businessman could sue the newspaper for defamation.

In the contexts of your website, you should always research any content you add to your website to confirm its validity, especially if you’re writing about other people or businesses.

If you make claims about another business that hurts their reputation, and potentially their income, you could be sued for damages.

As another, related topic, it’s not uncommon for business owners to come into legal trouble for sharing customer information without permission.

This commonly occurs when businesses post customer testimonials that include identifiable information about a customer without that customer’s approval.

Remember as well that defamation is not limited to only what you post on your website.

The same rules apply to what others post on your website as well.

For example, if you allow users to comment on your website, you could be held liable for the content they post on your website.

As such, you should make sure your terms and conditions specifically prohibit the use of defamatory language.

Similarly, you should take proactive steps to distance the words of your users from your own.

7. Poor Internal Organization

Business Organization Concept

Problems on your website are one thing, but poor organization in the real world is another beast entirely.

As previously mentioned, it’s smart to have a plan in place in case you experience a security breach.

Importantly, this plan should detail a clear division of labor between the various stakeholders in your business.

For example, who’s in charge of implementing data encryption best practices and other forms of daily maintenance? Who’s in charge of dealing with a data breach should one occur?

After all, your policies mean nothing if you fail to properly execute them.

As you form your privacy and security policies, you should make sure to detail the exact organizational structure that will handle the work.

From your IT manager to the person in charge of auditing your current website security, it’s critical that you lay out an exact plan for who will be in charge of the various aspects of your site.

Finally, and as an extension of the previous point, you should make sure to standardize your web presence to ensure a consistent presentation of your brand.

Your website should not have information that contradicts your social media platforms. Your contact information should be consistent on all platforms.

If your digital presence is inconsistent and uncoordinated then you may miss requests to license your copyrighted material or reply multiple times to a negative review.

This can make your business look sloppy and even land you in legal trouble.

For this reason, it’s wise to have a single working document that lists all of your business’s marketing and branding standards so everyone who posts on behalf of your brand knows what to say and how to say it.

Conclusion

Managing a website can really help a business blossom. However, simple mistakes and oversights can cause more harm than good.

The more complex your website is, the more likely it is that you have legal vulnerabilities.

However, careful review and organization can help your website be as productive and protected as possible.

Of course, if you ever have concerns or doubts, an attorney can quickly resolve them. Always contact one when in doubt, whether for your website or your business as a whole.

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Cancellation of Removal for Single Father https://tingenwilliams.com/2020/cancellation-of-removal-for-single-father/45021 Mon, 17 Aug 2020 18:41:32 +0000 https://tingenwilliams.com/?p=45021

Location: Arlington Immigration Court

Verdict: Cancellation of Removal Granted

Client’s adult-aged daughter came to us after client had been detained.

Client is a single father whose young son is a US citizen. The client’s son had displayed behavioral and developmental problems that were being cared for by the client and that had been exacerbated by the detention of the client.

Client’s son had been forced to live with his sister who was struggling to maintain her own life and care for her brother.

We recognized that client met the narrow qualifications for a process known as Cancellation of Removal.

He had lived in the US for a long time with no significant criminal record and had a US citizen child who would suffer immensely if the client were removed from the United States.

This required us to gather evidence of his time in the United States, his criminal record and the problems his son would suffer, all while the client remained in detention.

The client’s daughter took her brother to a therapist who submitted a written report and then testified in person to the deleterious effects that would be possible if the client were removed.

The Immigration Judge decided that the client had met his burden as to all requirements to be granted Cancellation of Removal.

As a result, the client is able to remain in the United States as a permanent resident.

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Asylum Granted for Police Informant https://tingenwilliams.com/2020/asylum-granted-for-police-informant/45022 Mon, 17 Aug 2020 18:38:44 +0000 https://tingenwilliams.com/?p=45022

Location: Arlington Immigration Court

Verdict: Asylum Granted

We recently had a client who fled his home country after experiencing multiple threats against his life. The threats were the result of him working as an informant against a criminal group.

His point person at the police was murdered and the client assisted in the investigation of that murder.

Someone in the group learned that the client was working with the police and told him he would be killed when he least expected it. That was when the client left his home country.

After leaving, another informant working on the same case was killed.

We prepared a full asylum packet, as we do for all of our cases, complete with affidavits and country condition reports.

What was unique for this case is that we successfully got a recorded telephone conversation into the record. We transcribed it and then had it translated. The telephone conversation was a threat received by the client.

The judge granted asylum, deciding that the client had met his burden in all aspects required to be granted asylum.

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