EEOC Charges on the Rise

According to the U.S. Equal Employment Opportunity Commission (EEOC), the agency received 82,792 private sector discrimination charge filings last fiscal year, the highest volume of incoming charges since 2002 and the largest annual increase (9%) since the early 1990s. During that period, the EEOC recovered $345 million in monetary relief for victims of employment discrimination. The most frequently filed charges of discrimination were based on race, retaliation, and sex.

To reduce their vulnerability to discrimination charges, employers should take proactive steps. Recommendations include implementing consistent personnel policies, documenting employee performance, informing employees of problem performance and terminating employees for cause when appropriate. Finally, employers should consider offering some severance in exchange for a full release from departing employees.

A Different Type of Trademark: Trade Dress

Unlike trademarks, which are often limited to words or logos, trade dress can cover the look and feel of your product or services. For example, it could be your color scheme, the types of chairs at your restaurant, or the hats your employees wear. However, while trade dress is a very broad category, courts are very particular about what types of trade dress are entitled to protection under law. After all, imagine a world where barber shops could not have red and white poles, or pizza restaurants could not post pictures of Italy. The four rules listed below can be used as a quick guide to see how likely it is that your trade dress is legally protectable:

1. Your trade dress must be used to indicate source. This is the single most important rule and means that your trade dress must be distinctive to the point where customers use it to identify your products. Campbell’s® soups are a good example of this. Without looking at the name of the product or any logos, you can easily identify their soups to be Campbell’s® products by the color designs on the cans.

2. Trade dress which is merely decorative and aesthetic that does not act in a source-identifying role will be not protectable as trade dress. The fact that you have fresh flowers all over your offices is a nice touch, but unlikely to be protectable.

3. The more commonplace your trade dress, the less likely you are to qualify for protection. Is your trade dress unique and distinctive? Do you use common colors and designs? Or is it something original that people have never seen before?

4. Intangible and vague aspects such as a product's marketing theme, or the “feeling one gets from the product” – are extremely unlikely to be eligible for trade dress protection. If you have a hard time describing the tangible aspects of your trade dress, it is unlikely to be protectable.

For more information on this subject, please contact Mitchell J. Rothenberg (rothenberg@bowie-jensen.com).