pinocchio, lies

Defamation: Should You Sue?

Sticks and Stones may break my bones… do words hurt?
Rumors are terrible. They can create unnecessary drama, but not only that, they can impact your reputation and business. In Florida, you can sue for libel, defamation or slander. There are facts to consider, however:

  1. If the statement is a true and provable fact
  2. The effect of the statement is injurious
  3. The victim is clearly identifiable
  4. There is publication to a third party
  5. There are measurable damages to the victim
  6. Veracity of the statements
  7. Intentional fault by the defamer

It’s not just individuals that can be defamed. Corporations, unincorporated associations and even partnerships can be defamed.

So, what’s the difference between libel, slander and defamation?

Defamation is the written or spoken word of someone that causes you to have a negative impression of someone’s reputation. Two types of defamation are:

  • Libel is a written or permanently recorded defamatory statement.
  • Not as permanent as libel, Slander is spoken defamation.

In Florida, actionable damages must be present to recover. Damages can mean any way your business has been negatively impacted. Loss of revenue? Inability to secure employees? Loss of vendors? These are examples of damages that can be calculated. Calling names may not be enough to qualify for actionable injury, but there are false allegations that can create defamation and result in an actionable case. The statements must be false, of malicious intent, must be published or spoken to a third party (someone who is not you or them), and you must show damages as a result.

Contact an experienced business law attorney to determine your rights and evaluate your case.

Emoji With ⚠️

Do emojis make you 🙂 or do they make you 🙁 ? Use emojis in text and email with caution, because a misinterpretation could land you in hot water.  If you unintentionally send a kissy face to a subordinate, is that sexual harassment?  If you send a gun emoji, is that a death threat? 

US courts have been experiencing a rise in the use of emojis as evidence. Courts used emojis as evidence 33 times in 2017. In the first half of 2019, that number has risen to almost 50.  As everyone from your toddler to your grandma becomes fluent in text speak, emojis are becoming an inescapable element of our techie vernacular. 

Currently there are no hard and fast rules of evidence for handling emojis in court cases.  Some judges toss them out all together; some judges describe the emoji (smiling pile of poo anyone)?  These emojis (along with written text messages) can be misinterpreted, explained away with “I was just joking” (or j/k), or laughed off—because an “LOL” makes everything better, right?  Depending on your cultural background, a seemingly harmless thumbs up could be offensive or vulgar.  Depending on your operating platform, an emoji appears different and not the innocent smiley you thought you were sending—most differences can be noted between Apple and Android devices. 

New emojis are released on a regular basis. Courts will soon need to interpret existing laws to meet this growing need.   Can you imagine our founding fathers’ reactions to an eggplant and a peach now being considered provocative?   At least via text they are… Although your teenager can most likely interpret a confusing emoji filled text message, contact a reputable attorney for assistance should an emoji make you 😱.

Call us today for a consultation!

Are Handshake Deals for Real?

handshake deal

Is a verbal contract enforceable in Florida? Not all agreements have to be in writing to be enforceable, but having a written contract is best. For a verbal contract to be enforceable, you must be able to prove an offer was made and accepted. The offer must be for an exchange of value through goods, services, or money. For an explanation on the two types of Florida contracts, read our article.

While certain verbal agreements are enforceable, it is always best to have a written contract in place. Written contracts make agreements easier to enforce and can help avoid litigation during disputes between parties.

According to Florida law, there are special circumstances in which a verbal agreement cannot be enforced. The Statute of Frauds declares that certain types of agreements are not enforceable without a written contract. This statute states that the agreement must be in writing and signed by the party to be charged before it can be enforced.

Some examples of special circumstances where the Statute of Frauds requires a written contract are:

  • Contracts for the sale of lands
  • Agreements that are not to be performed within 1 year from the date of the contract
  • Any special promise to answer for the debt of another person
  • An agreement made upon consideration of marriage
  • A lease thereof for a period longer than 1 year
  • A newspaper subscription

When in doubt, hiring an experienced attorney to create a written contract to protect your interests, is the best choice.

If you have any questions about the enforceability of a verbal agreement or contract, contact us today!

How T-Shirts Modernized Trademark Law

#@&!

Some say “community standards” are “F-U-C-T” after a recent trademark case was reviewed by the Supreme Court.  Erik Brunetti, of Pennsylvania, founded his clothing company in 1990, the acronym for Friends U Can’t Trust. 

In 2011, Brunetti filed for a trademark of his business’s name. The United States Patent and Trademark Office denied his request, on the basis that the company’s name was vulgar and scandalous. The “immoral/scandalous clause” of the Lanham Act prohibits “offensive” or “vulgar” marks.

The Supreme Court (SCOTUS) heard the case of Iancu v. Brunetti, last month, and reversed The Trademark Trial and Appeal Board’s decision.  Although the company’s name is designed to be read by each letter, Justice Kagan notes “… you might read it differently and, if so, you would hardly be alone.”  The majority wrote, the brand name doesn’t matter and trademark law “discriminates on the basis of viewpoint.” While one person might find the company name vulgar and alarming, another may view it a normal part of everyday speech.  Ultimately the Lanham Act’s disparaging and offensive references were deemed overly broad and a violation of Brunetti’s right to free speech. 

Reminiscent of Roth v. United States, this case is challenging material (or words) once determined obscene in the eyes of the “average person, applying contemporary community standards.”  Although not actually quoted, Justice William Brennan’s majority opinion on obscenity has been colloquially known as “I’ll know it when I see it.” SCOTUS did not find Brunetti’s clothing line vulgar.

If “knowing it when you see it” isn’t working for you and you need help trademarking your idea, contact our experienced trademark attorney today. 

Business Disasters

Business Disasters

Let’s be real, no matter how successful, every business has experienced their share of surprises. While many factors can attribute to a company’s down fall, it’s not easy to predict. Some of these issues may seem farfetched but they tend to catch company owners off guard the most.

  1. Disruption in Cash Flow – This mayappear to be a no brainer but still can be a problem. Though you may have many customers, it doesn’t always mean customers are paying on time, or that something won’t break and require immediate cash.

  2. Personal Matters – Many personal matters can bleed over into our business. Personal legal matters such as bankruptcy, debt collection, divorce or criminal record of a partner can affect the company considerably. Health issues such as Alzheimer’s Disease, drug addiction, incapacitation or disability of a partner can also have an impact.
  • Business Lawsuits – Lawsuits can significantly impact on the profitability of a company. In short, litigation is expensive. These suits can be triggered by unintentional intellectual property infringement, product liability, personal injury, employment disputes, contract disputes, or partnership disputes.
  • Scandals – Scandals are easiest to avoid when you and all who represent your company are being honest and up front when presenting your business. However, these events could be caused by anyone representing your company. Scandals can significantly damage your company’s reputation. As a result, customers may lose their trust in you or your product.
  • Forces of Nature – Natural disasters are unpredictable. Even calm parts of the world could experience dangerous weather or disasters. It only has to happen once to strike a major blow to any business. Consider getting some sort of disaster insurance if it is available.
  • Fraud – Fraud can happen even with the most loyal employees, partners, or customers, especially at the start of growing your business. No matter how much you may trust these people, one of them may still end up mishandling funds or stealing from your business outright. 

Even for well informed, experienced entrepreneurs, it is impossible to prepare your business for every situation you may encounter. There will be situations beyond your control and/or put you and your business to the test.

Hiring an experienced business law attorney to incorporate comprehensive disaster protocols within your operating agreement can prepare you for most situations.

An experienced business litigation attorney can help mitigate the over-all impact, if you are experiencing such a disaster.

Contact us today for a FREE consultation.