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      "body": "@@ -115,55 +115,4 @@\n fdcb\n-  Are you Israel Ace B, the author of that article?\n",
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      "body": "dang, ok I will.  My twitter is @sgemediagroup.  The offer still stand for you to come on and chat with us when we interview @memarh on the show!",
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      "title": "Why Wacoinda Matters:  The brewing Trademark battle between Cryptocurrency startup Wacoinda and Disney’s Wakanda",
      "body": "![](https://cdn.steemitimages.com/DQmNede8q7bPkzNA3fHW5gtAiFjsKavGWapUWB9KqVn3wCB/image.png)\n\nWE KNOW DISNEY, WHO IS WACOINDA?\nWithout a doubt, when it comes to fame, it does not get bigger than the legacy of Mr. Walter Elias Disney and his brainchild corporation, The Walt Disney Company. I'm wondering however, how many Black Panther fans know that the mythical city of Wakanda[2], the pious T'Challa, and even the vengeful Killmonger are all the tightly held intellectual property of Disney. Well you may have known that, but you definitely didn't know that the trademark for \"Wakanda\" was published several weeks after an organization called \"Wacoinda\" published their name and there may be a brewing David versus Goliath battle over the rights.\n\nAccording to Black Enterprise, Wacoinda is \"THE FASTEST-GROWING BLACK ECONOMIC GROUP ON FACEBOOK\" and was founded by Lafe Taylor and Lamar Wilson in the first quarter of 2018. The group currently has over 30,000 members, and is completely decentralized. Mr. Wilson, one of the more vocal founders of the decentralized network, has given details about the mindset of the original group. He's explained that the purpose of Wacoinda is to \"teach people about economics, try to help and eradicate economic injustice, and to bring people together through love and collaboration.\" According to their founders:\n\nThe only way to fight against any injustice in this world is with unity. Wacoinda not only brings like-minded people from all over the world together but does it in love, the strongest force against the evils of injustice. We all know that Black Panther is a fictional character, but in Wacoinda there are real-life Black Panthers, of all colors, who believe in freedom and ownership, and that it's more powerful to love than to be loved.\nOne wonders if Mr. Disney believed in a similar concept when he stepped out on his own and decided he wanted to focus on expressing his love by enchanting people with his animation.\n\nIt was 1928 when Disney, a young entrepreneur at the time, created a sensation through his animated figure Mickey Mouse. That business has grown radically, until now it is the stuff of American folklore, the epitome of the American dream with an American size bank account to boot. The brand has become so well known and so powerful that in August of 2009 it had the muscle to acquire Marvel Entertainment for $4 billion. With that acquisition Disney gained volumes of rights to the most powerful and interesting characters in modern history. It also acquired Marvel Studios' Black Panther.\n\nThe box office success of Black Panther in the United States was certainly a ground breaking cultural phenomenon. But what's more, seeing the African Kingdom of Wakanda left a lasting impression on Black Americans. The Kingdom of Wakanda (wə-Kɑ(H)N-də), which perfectly matches the location and phonetics of Uganda (yoo-Ga(H)N-də) in East Africa, spoke to the hearts and minds of a majority of Black people who watched the flick. Black Panther's concepts were so vivid that some paid to see the film two or three times to support the movement.\n\nIn the words of Time magazine, \"Hollywood has never produced a blockbuster this splendidly black.\" And even going to the theaters the Black community wouldn't be left out. As Time explained, at Black Panther's primer the Actors adorned themselves in African royal attire, and presented a booming cultural display. This trend was a pattern replicated throughout the United States, bringing the African diaspora front and center to the film. Dressing up became an act of solidarity, and on display were \"ascending head wraps made of various African fabrics . . . natural hair tightly wrapped above a resplendent bejeweled gowns. Men . . . wore Afrocentric patterns and clothing, dashikis and boubous, [even] a kanzu the formal tunic of [] Ugandan ancestry.\" The image of Wakanda represented to them the type of \"Black Wall Street\" that they were denied in 1921. Wakanda is like the combined philosophical wet dream of Malcolm X, Langston Hughes and James Baldwin intertwined and made real.\n\nEnter Wacoinda. Wacoinda is a real decentralized community that was birthed in January 17th, 2018. It was the result of a live conversation about economic empowerment and cryptocurrency. Facebook served as the principal location until organizers launched a website for their digital currency called the Wacoinda Fa'Eva Wallet. The group has also released its own currency which it trades internally and has even launched a Wacoinda-Marketplace where the currency is accepted.\n\nOrganizers originally called themselves the \"Black Coin Group\" however after a funny interlude from one of their members, the organization agreed on the name Wacoinda. When they attempted later on to change it back to the Black Coin Group, people disliked it, so the name stuck. A few days later, organizers noticed that other facebook groups using the exact name began to pop up and a trademark was subsequently filed by Wilsondom LLC merely for expeditious processing. The name was published on July 17th, 2018 almost two weeks before Wakanda's publication.\n\nWHAT HAPPENED?\nOn August 7th 2018, Marvel Characters, Inc. a subsidiary of Disney filed a \"First 90 Day Request for Extension of Time to Oppose for Good Cause\" to oppose Wacoinda's trademark. Formally, it does not mean that Disney will file an opposition to Wacoinda's name, but rather that it \"needs additional time to investigate the claim [and] confer with counsel.\" We too can investigate the potential claim based on what we know about the Wacoinda name and current case law. For a full legal analysis  check out my article here: https://medium.com/@israelaceburns/why-wacoinda-matters-21860b2afdcb\n\nWhile it is possible that Disney's reputation is offended by the concept of a group \"centered around cryptocurrency and financial education that encompasses black wealth, power, and influence,\" even the cryptocurrency media suggests that if approved Wacoinda \"would be applied to financial education and economic empowerment initiatives aimed at the African-American community.\" As such, it is hard to argue both sides of Trademark dilution.\n\nIS THE WAKANDA BRAND FAMOUS ENOUGH FOR TRADEMARK DILUTION?\nThe threshold question in our trademark dilution analysis is whether the name Wakanda meets the level of fame required for dilution. Dilution is only for those marks which can summon the general knowledge of a majority of the plaintiffs market. In other words, a famous mark is one that has become a \"household name.\" Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1012 (9th Cir. 2004) (quoting Thane Int'l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 911 (9th Cir. 2002); Beebe - Trademark Law: An Open-Source Casebook 134 V3.0/2018–08–27. According to the Lanham Act § 43(c), in deciding the fame aspect of dilution by blurring or tarnishment the mark must be \"widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner.\" Lanham Act § 43(c)(2)(A). Additionally, the mark must have become famous before the defendant began its allegedly diluting use. See Lanham Act § 43(c)(1).\n\nAmong the marks that have failed to meet the fame requirement are the \"longhorn\" logo of the University of Texas, Board of Regents v. KST Elec., Ltd., 550 F. Supp. 2d 657, 678 (W.D. Tex. 2008), and the red dripping wax seal of the Maker's Mark whiskey bottle, Maker's Mark Distillery, Inc. v. Diageo North America, Inc., 703 F. Supp. 2d 671, 698 (W.D. Ky. 2010) (\"Congress intended for dilution to apply only to a small category of extremely strong marks.\"). Among the marks that have met the fame requirement are JUST DO IT, CHANEL, AUDI, and AMERICA'S TEAM. See respectively Nike, Inc. v. Peter Maher and Patricia Hoyt Maher, 100 U.S.P.Q.2d 1018, 1027 (T.T.A.B. 2011); Chanel, Inc. v. Makarczyk, 110 U.S.P.Q.2d 2013 (T.T.A.B. 2014); Audi AG v. Shokan Coachworks, Inc., 592 F. Supp. 2d 246, 280 (N.D. N.Y. 2008); Dallas Cowboys Football Club, Ltd. v. America's Team Properties, Inc., 616 F. Supp. 2d 622 (N.D. Tex. 2009).\nWakanda is an interesting and exciting name, but it is not a household name. Further without empirical data, it is impossible to establish Wakanda, as reaching the level of recognition owed the protection of dilution. Based on the established case law, Wakanda has not met the standard to be considered famous under the Lanham act. As such Dilution would not apply.\n\nWHAT IS TRADEMARK PARODY?\nAdmittedly, the name Wacoinda seems to parody the name Wakanda in an almost satirical manner, much like in Louis Vuitton Malletier, S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252 (\"Louis Vuitton\"). A parody of a trademark must convey two simultaneous - and contradictory - messages: that it is the original, but also that it is not the original and is instead a parody. Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ'g Grp., Inc., 886 F.2d 490, 494 (2d Cir. 1989).\nLouis Vuitton, elaborated on the concept of Trademark parody. 507 F.3d 252 at 264. Trademark parody involves the appropriation of another's mark as a well known elements of popular culture, and then building on it to contribute something new for humorous effect or social commentary. The Fourth Circuit's decision in Louis Vuitton provides a detailed analysis of the parody defense to trademark infringement claims. In sum, the Court explained that defendants products and names were clearly similar in monogram, design and coloring, which indicated they were imitation. Normally, a strong mark favors the senior trademark owner, but, in the case of a parody, the fame of the mark allows consumers to readily perceive the target of the parody. Similarity of the marks themselves also favor the new trademark owner so long as the parody is sufficiently blatant so as to easily invoke the famous trademark in the mind of consumers, yet still distinguish the products.\n\nCONCLUSION\nFor the reasons stated above Wacoinda has not infringed or diluted Wakanda's brand. Because Wacoinda's products and services are totally different, to date there is no evidence of actual confusion, the Wakanda brand is not strong enough to initiate a dilution claim and, even if it were, the theory of Trademark Parody does properly shield Wacoinda from liability. For these reasons it is axiomatic that Disney would fail in its attempt to prevent Wacoinda from Trademarking its name.\n\n\n---\n\n[1] For sake of full disclosure, admittedly, I am a proud member of the Wacoinda family, and I've had direct communication with its founding organizers and members.\n[2] U.S. APPLICATION SERIAL NO. 87675039 \nMARK: WAKANDA*87675039* \nCORRESPONDENT ADDRESS: STEVE ACKERMAN \nTHE WALT DISNEY COMPANY 500 SOUTH BUENA VISTA STREET\nIP DEPARTMENT - TRADEMARK GROUP BURBANK, CA 91521\n[3] \"To prevail on a claim of trademark infringement under the Lanham Act, 15 U.S.C. § 1114, a party must prove: (1) that it has a protectible ownership interest in the mark; and (2) that the defendant's use of the mark is likely to cause consumer confusion.\" Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011) (citations omitted). However, where the products and services are so dissimilar such that it is not possible for consumer to be confused as to its source, there is no likelihood of confusion. Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103, 192 USPQ 24, 29 (C.C.P.A. 1976).",
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      "title": "",
      "body": "This looks quite similar to this post on medium - https://medium.com/@israelaceburns/why-wacoinda-matters-21860b2afdcb  Are you Israel Ace B, the author of that article?",
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      "title": "Why Wacoinda Matters:  The brewing Trademark battle between Cryptocurrency startup Wacoinda and Disney’s Wakanda",
      "body": "WE KNOW DISNEY, WHO IS WACOINDA?\n\nWithout a doubt, when it comes to fame, it does not get bigger than the legacy of Mr. Walter Elias Disney and his brainchild corporation: The Walt Disney Company.  I’m wondering however, how many Black Panther fans know that the mythical city of Wakanda, the pious T’Challa, and even the vengeful Killmonger are all the tightly held intellectual property of Disney.  Well you may have known that, but you definitely didn't know that the trademark for “Wakanda” was published several weeks after an organization called “Wacoinda” published their name and there may be a brewing David versus Goliath battle over the rights.  \n\n According to Black Enterprise, Wacoinda is “THE FASTEST-GROWING BLACK ECONOMIC GROUP ON FACEBOOK” and was founded by Lafe Taylor and Lamar Wilson in the first quarter of 2018.  The group currently has over 30,000 members, and is completely decentralized.  Mr. Wilson, one of the more vocal founders of the decentralized network, has given details about the mindset of the original group.  He’s explained that the purpose of Wacoinda is to “teach people about economics, try to help and eradicate economic injustice, and to bring people together through love and collaboration.”  According to their founders, the purpose of Wacoinda is to eradicate  economic injustice through the use of collaboration and love.\nThe only way to fight against any injustice in this world is with unity. Wacoinda not only brings like-minded people from all over the world together but does it in love, the strongest force against the evils of injustice. We all know that Black Panther is a fictional character, but in Wacoinda there are real-life Black Panthers, of all colors, who believe in freedom and ownership, and that it’s more powerful to love than to be loved.\n\nOne wonders if Mr. Disney believed in a similar concept when he stepped out on his own and decided he wanted to focus on expressing his love by enchanting people with his animation. \n    \nIt was 1928 when Disney, a young entrepreneur at the time, created a sensation through his animated figure Mickey Mouse.  That business has grown radically, until now it is the stuff of American folklore, the epitome of the American dream with an American size bank account to boot.  The brand has become so well known and so powerful that in August of 2009 it had the muscle to acquire Marvel Entertainment for $4 billion.  With that acquisition Disney gained volumes of rights to the most powerful and interesting characters in modern history.  It also acquired Marvel Studios’ Black Panther.  \nThe box office success of Black Panther in the United States was certainly a ground breaking cultural phenomenon. But what's more, seeing the African Kingdom of Wakanda left a lasting impression on Black Americans.  The Kingdom of Wakanda (wə-Kɑ(H)N-də) which perfectly matches the location and phonetics of Uganda (yoo-Ga(H)N-də) in East Africa, spoke to the hearts and minds of a majority of Black people who watched the flick.  Black Panther’s concepts were so vivid that some paid to see the film two or three times to support the movement.  \n\nIn the words of Time magazine, “Hollywood has never produced a blockbuster this splendidly black.”  And even going to the theaters the Black community wouldn’t be left out.  As Time explained, at Black Panther’s primer the Actors adorned themselves in African royal attire, and present a booming cultural display.  This trend was a pattern replicated throughout the United States, bringing the African diaspora, front and center, to the film.  Dressing up became an act of solidarity, and on display were, “ascending head wraps made of various African fabrics . . . natural hair tightly wrapped above a resplendent bejeweled gowns. Men . . . wore Afrocentric patterns and clothing, dashikis and boubous, [even] a kanzu the formal tunic of [] Ugandan ancestry.”  The image of Wakanda represented to them the type of “Black Wall Street” that they were denied in 1921.  Wakanda is like the combined philosophical wet dream of Malcolm X, Langston Hughes and James Baldwin intertwined and made real. \n\nEnter Wacoinda.  Wacoinda is a real decentralized community that was birthed in January 17th, 2018.  It was the result of a live conversation about economic empowerment and cryptocurrency.  Facebook served as the principal location until organizers launched a website for their digital currency for called the Wacoinda Fa'Eva Wallet.  The group has also released  its own currency which it trades internally and has even launched a Wacoinda-Marketplace where the currency is accepted. \nOrganizers originally called themselves the “Black Coin Group” however after a funny interlude from one of their members, the organization agreed on the name Wacoinda.  When they attempted later on to change it back to the Black Coin Group, people disliked it, so the name stuck.  A few days later, organizers noticed that other facebook groups using the exact name began to pop up and a trademark was subsequently filed by Wilsondom LLC merely for expeditious processing.  The name was published on July 17th, 2018 almost two weeks before Wakanda’s publication.\n\nWHAT HAPPENED?\n\nOn August 7th 2018, Marvel Characters, Inc. a subsidiary of Disney filed a “First 90 Day Request for Extension of Time to Oppose for Good Cause” to oppose Wacoinda’s trademark.  Formally, it does not mean that Disney will file an opposition to Wacoinda’s name, but rather that it “needs additional time to investigate the claim [and] confer with counsel.”  We too can investigate the potential claim based on what we know about the Wacoinda name and current case law. \nWHAT IS TRADEMARK INFRINGEMENT / DILUTION?\nTrademark Infringement and Dilution, as originally conceived, refer to the harm that occurs when a famous, distinctive mark loses its singular meaning.  The federal standard for trademark infringement is \"likelihood of confusion.\"  To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. See 15 U.S.C. §§ 1114, 1125.  Under the Lanham Act § 32, § 43(a), 15 U.S.C. §§ 1114, 1125, \"likelihood of confusion\" is the use of a trademark in connection with the sale of a good that is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods.  In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820 (1961).\n\nAccording to Barton Beebe, NYU School of Law, the idea underlying “dilution by blurring” is that the defendant’s use of a mark similar or identical to the plaintiff’s mark, though perhaps not confusing as to source, will nevertheless “blur” the link between the plaintiff’s mark and the goods or services to which the plaintiff’s mark is traditionally attached.  In Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 264 (4th Cir. 2007), the Court determined the main elements of a claim for dilution by blurring or by tarnishment which are: (FAME) (1) that the plaintiff owns a famous mark that is distinctive; (ACTUAL DILUTION) (2) that the defendant has commenced using a mark in commerce that allegedly is diluting the famous mark; (SIMILARITY) (3) that a similarity between the defendant’s mark and the famous mark gives rise to an association between the marks; and (IMPAIRMENT) (4) that the association is likely to impair the distinctiveness of the famous mark or likely to harm the reputation of the famous mark. Id. at 264-65.  The fame element of dilution and the strength element in likelihood of confusion has a slightly similar elements of analysis and so they will be discussed together under the dilution analysis.  However, Because the likelihood of confusion standard is lower, we will assume “strength of the mark” meets the requisite requirement. See TCPIP Holding Co. v. Haar Communications Inc., 244 F.3d 88, 100 (2d Cir. 2001) (describing the two concepts of strength).\n\nSo the question remains, under U.S. trademark law, has Wacoinda infringed or diluted Disney’s trademark? For the reasons stated below, it is extremely unlikely the trademark office or a Federal judge will find that Wacoinda has in any way infringed or diluted the Wakanda brand.  This is because,  1) Wacoinda’s products and services are totally different; 2) Even if, arguendo, Wacoinda and Wakanda have similar sounding names, there is no evidence of confusion; 3) Wakanda’s Trademark is not strong enough to initiate dilution claim; and finally, 4) the theory of Trademark Parody would shield Wacoinda from liability. \nARE WACOINDA’S SERVICES LIKELY TO BE CONFUSED WITH WAKANDA’S GOODS?\n \n“Related goods are generally more likely than unrelated goods to confuse the public as to the producers of the goods.” Brookfield Communications, Inc. v. West Coast Entm’t Corp., 174 F.3d 1036, 1055-56 (9th Cir. 1999).  “[T]he danger presented is that the public will mistakenly assume there is an association between the producers of the related goods, though no such association exists.” AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 350 (9th Cir. 1979).  The proximity of goods is measured by whether the products are:  (1) complementary;  (2) sold to the same class of purchasers;  and (3) similar in use and function. Id. \nFirst, the goods and service of these two entities could not be further apart.  They have almost no overlap, save possibly “entertainment.”  As such, the products do not complement each other in any respect.  Second, the class of purchasers are equally distinct.  Disney, has always marketed its products to children, and so they have a legitimate interest in children's items, like games, and playthings.  However, Wakanda is about financial matters, which are purely the realm of adults.  They deal in real world issues, and serious monetary programs.  Therefore, the two entities again are distinct.  \nWith respect to the similarity of their goods and service, they are equally distinct.  In Federal Foods Inc., the Court explained how vastly different products and services can help dispel a theory of likelihood of confusion.  The court explained that “[n]obody, during the course of this proceeding, has asserted that the utilities of opposer's toilet tissue and appellant's aluminum foil, plastic bags, and sponges are even remotely associated by the consumer, nor has it been asserted that, under these circumstances, a consumer might pick up sponges or aluminum foil when he really wanted toilet tissue. Opposer has failed to adduce any evidence of a nexus between these products in the mind of the consumer which would negate the above-noted obvious dissimilarities. In our opinion, the cumulative differences between the respective goods and the respective marks are sufficient to preclude likelihood of confusion, mistake, or deception.” See, e.g., In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010); In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1244 (TTAB 2010) ; In re Thor Tech, Inc., 90 USPQ2d 1634, 1635 (TTAB 2009).\n\nBased on the ruling above, its fairly obvious that Wacoinda’s products and services are distinct enough not to conflict with Wakanda’s goods.  Disney’s attorney selected one International Class, section 028 for “Games and playthings”, and “decorations for christmas trees.”  Disney marketing to children decidedly selected the following goods and services for its brand:  \n\nAction skill games; action figures and accessories therefor; board games; card games; children's multiple activity toys; badminton sets; balloons; basketballs; bath toys; baseball bats; baseballs; beach balls; bean bags; bean bag dolls; bobblehead dolls; bowling balls; bubble making wand and solution sets; chess sets; toy imitation cosmetics; Christmas stockings; Christmas tree ornaments and decorations; collectable toy figures; crib mobiles; crib toys; disc toss toys; dolls; doll clothing; doll accessories; doll playsets; electric action toys; equipment sold as a unit for playing card games; fishing tackle; fishing rods; footballs; golf balls; golf gloves; golf ball markers; hand-held units for playing electronic games for use with or without an external display screen or monitor; hockey pucks; hockey sticks; infant toys; inflatable toys; inflatable pool toys; jigsaw puzzles; jump ropes; kites; magic tricks; marbles; manipulative games; mechanical toys; music box toys; musical toys; parlor games; party favors in the nature of small toys; paper party favors; paper party hats; party games; playing cards; plush toys; puppets; roller skates; rubber balls; skateboards; snow boards; snow globes; soccer balls; spinning tops; squeeze toys; stuffed toys; table tennis balls; table tennis paddles and rackets; table tennis tables; talking toys; target games; teddy bears; tennis balls; tennis rackets; toy action figures and accessories therefor; toy boats; toy bucket and shovel sets in the nature of sand toys; toy building blocks; toy mobiles; toy vehicles; toy scooters; toy cars; toy figures; toy banks; toy vehicles in the nature of toy trucks; toy watches; toy weapons; toy building structures and toy vehicle tracks; video game machines for use with televisions; volley balls; wind-up toys; yo-yos; toy trains and parts and accessories therefor; toy aircraft; fitted plastic films known as skins for covering and protecting electronic game playing apparatus, namely, video game consoles, and hand-held video game units; balls for games; battery operated action toys; bendable toys; construction toys; game tables; inflatable inner tubes for aquatic recreational use; inflatable swimming pools; piñatas; radio controlled toy vehicles; role playing games; snow sleds for recreational use; stacking toys; surf boards; swim fins; toy furniture; toy gliders; toy masks; toy model train sets; water slides\n\nSee USPTO TSDR Wakanda Trademark Publication Stylesheet § Goods And Services at p.1.  \nConversely Wacoinda’s attorney selected two International Classes for the Wacoinda brand, section 036 for “Insurance; financial affairs; monetary affairs;” and section 041 for “Education; providing of training”, and “sporting and cultural activities.”  Wakanda then selected the following services for its brand:  \nFinancial services, namely, providing a virtual currency for use by members of an on-line community via a global computer network; Financial services, namely, providing electronic transfer of a virtual currency for use by members of an on-line community via a global computer network; Issue of tokens of value\nEducation services, namely, providing live and on-line classes in the field of cryptocurrency; Educational services, namely, conducting programs in the field of cryptocurrency; Educational services, namely, providing educational speakers in the field of cryptocurrency\n\nSee USPTO TSDR Wacoinda Trademark Publication Stylesheet § Goods And Services at p.1.     \nNoticeably, there is absolutely no overlap in the Goods and Service between Wacoinda and Wakanda, in fact, Wakanda sells Goods and Wacoinda sells Services.  As such, the analysis sketched out by Federated Foods, Inc., follows here, there is absolutely no similarity in the product of the entities. \n\nIS THERE ANY PROOF OF WACOINDA / WAKANDA NAME CONFUSION?\n\n    While there may be a question regarding whether Wacoinda and Wakanda sound the same, there is no empirical data to prove that point.  Typically high-stakes well-funded trademark litigation cases will involve survey evidence, in which they poll a large number of consumers.  In fact, it is so customary that courts will sometimes draw an “adverse inference” against a party for failing to present it. See, e.g.,Eagle Snacks, Inc. v. Nabisco Brands, Inc., 625 F. Supp. 571, 583 (D.N.J. 1985) (“Failure of a trademark owner to run a survey to support its claims of brand significance and/or likelihood of confusion, where it has the financial means of doing so, may give rise to the inference that the contents of the survey would be unfavorable, and may result in the court denying relief.”); but see, e.g., Tools USA and Equipment Co. v. Champ Frame Straightening Equipment Inc., 87 F.3d 654, 661 (4th Cir. 1996) (“Actual confusion can be demonstrated by survey evidence, but contrary to [defendant’s] suggestion, survey evidence is not necessarily the best evidence of actual confusion and surveys are not required to prove likelihood of confusion.”).  When litigants do present survey evidence, courts’ analysis of this evidence can be painstaking, especially when the litigants present dueling survey experts. Smith v. Wal-Mart Stores, Inc., 537 F.Supp.2d 1302 (N.D.Ga. 2008). \nIn either case, Disney has yet to put forth any data suggesting that those looking for Wakanda were actually confused and interrupted by Wacoinda.  Since Wacoinda has spent zero dollars on marketing, there's also no similarity of marketing channels used.  \n\nWHO IS MORE SOPHISTICATED WACOINDAN OR WAKANDAN PURCHASERS?\n\nIn Hormel Foods Corp. v. JIM,  73 F.3d 497 (1996),  the Court found that “a child or adult who would be likely to buy merchandise [one brand] would do so ‘because he likes the [one product], not because he mistakenly thinks that it is a [another product].\" Id. (citation omitted).  Hormel established that in reviewing the sophistication element of likelihood of confusion, it found in its discussion of market proximity that consumers who want to one product rarely associate it with a primary product and would not be confused by its merchandise. Id.  This finding is relevant in the sophistication analysis, especially because sophistication and market proximity are closely related concepts. See, Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 968-69 (2d Cir.1981).\nIt is clear that Wacoindan purchasers, who have an interest in Wacoinda’s mission to eradicate economic injustice, are highly sophisticated and will be able to distingh from Disney’s products.  Likewise, the children looking for T’challa school backpacks, Black Panther pencils, and Killmonger masks would not be interested in Wacoinda’s online lectures.  Because this prong regards the level of care an individual purchaser would take in navigating the market to their intended product, the 6th element of likelihood of confusion weights in favor of Wacoinda.  \nFinally, as to the last element of the analysis, there is no evidence that Wacoinda attempted to create confusion in the market by creating its name.  The history of the organization establishes, that the group was functioning and working together prior to the trademark, and by sheer happenstance and group think a new name was birth.  No one person choose the name, in that sense it was conceived in a purely decentralized manner.  As such, no negative intent can be implied in that process. \n    \nIS THERE ENOUGH FOR TRADEMARK TARNISHMENT?\n\nAccording to Beebe, the Lanham Act § 43(c)1 covers dilution, “which is probably the single most muddled concept in all of trademark doctrine.”  Dilution comes in two forms, dilution by tarnishment and dilution by blurring.  Dilution by tarnishment deals with uses that have damaging effects on the positive associations of a trademark.  Principal cases like Deere & Co. v. MTD Prods., Inc., 41 F.3d 39, 43 (2d Cir. 1994), explain that “tarnishment generally arises when the plaintiff’s trademark is linked to products of shoddy quality, or is portrayed in an unwholesome or unsavory context likely to evoke unflattering thoughts about the owner’s product[s].”  \nThis is not the case in Wacoinda’s use.  While it is possible that Disney’s reputation is offended by the concept of a group “centered around cryptocurrency and financial education that encompasses black wealth, power, and influence,” even the cryptocurrency media suggests that if approved Wacoinda, “would be applied to financial education and economic empowerment initiatives aimed at the African-American community.”  As such, it is hard to argue both sides of Trademark tarnishment in Wacoinda’s case.  However, lucky dilution by tarnishment, and by blurring is reviewed under the same analysis below. \n\nIS THE WAKANDA BRAND FAMOUS ENOUGH FOR TRADEMARK DILUTION?\n\n    The threshold question in our trademark dilution analysis is whether the name Wakanda meets the level of fame required for dilution. Dilution is only for those marks which can summon the general knowledge of a majority of the plaintiffs market.   In other words, a famous mark is one that has become a “household name.” Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1012 (9th Cir. 2004) (quoting Thane Int’l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 911 (9th Cir. 2002); Beebe - Trademark Law: An Open-Source Casebook 134 V3.0/2018-07-18.  According to the Lanham Act § 43(c), in deciding the fame aspect of dilution by blurring or tarnishment the mark must be “widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner.” Lanham Act § 43(c)(2)(A).  Additionally, the mark must have become famous before the defendant began its allegedly diluting use. See Lanham Act § 43(c)(1).\nAmong the marks that have failed to meet the fame requirement are the “longhorn” logo of the University of Texas, Board of Regents v. KST Elec., Ltd., 550 F. Supp. 2d 657, 678 (W.D. Tex. 2008), and the red dripping wax seal of the Maker’s Mark whiskey bottle, Maker’s Mark Distillery, Inc. v. Diageo North America, Inc., 703 F. Supp. 2d 671, 698 (W.D. Ky. 2010) (“Congress intended for dilution to apply only to a small category of extremely strong marks.”). Among the marks that have met the fame requirement are JUST DO IT, CHANEL, AUDI, and AMERICA’S TEAM. See respectively Nike, Inc. v. Peter Maher and Patricia Hoyt Maher, 100 U.S.P.Q.2d 1018, 1027 (T.T.A.B. 2011); Chanel, Inc. v. Makarczyk, 110 U.S.P.Q.2d 2013 (T.T.A.B. 2014); Audi AG v. Shokan Coachworks, Inc., 592 F. Supp. 2d 246, 280 (N.D. N.Y. 2008); Dallas Cowboys Football Club, Ltd. v. America’s Team Properties, Inc., 616 F. Supp. 2d 622 (N.D. Tex. 2009).\nBased on the established case law, Wakanda has not met the standard to be considered famous under the Lanham act.  As such Dilution would not apply.  \n\nWHAT IS TRADEMARK PARODY?\n\nAdmittedly, the name Wacoinda was meant to parody the name Wakanda in an almost satirical manner,  much like in Louis Vuitton Malletier, S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252 (\"Louis Vuitton\").  A parody of a trademark must convey two simultaneous—and contradictory— messages: that it is the original, but also that it is not the original and is instead a parody. Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Grp., Inc., 886 F.2d 490, 494 (2d Cir. 1989).  \n     In Louis Vuitton, the court elaborated on the concept of Trademark parody.  Trademark parody involves the appropriation of another’s mark as a well known elements of popular culture, and then building on it to contribute something new for humorous effect or social commentary.  The Fourth Circuit’s decision in Louis Vuitton provides a detailed analysis of the parody defense to trademark infringement claims.  In sum, the Court explained that defendants products and names were clearly similar in monogram, design and coloring, which indicated they were imitation.  Normally, a strong mark favors the senior trademark owner, but, in the case of a parody, the fame of the mark allows consumers to readily perceive the target of the parody.  Similarity of the marks themselves also favor the new trademark owner so long as the parody is sufficiently blatant so as to easily invoke the famous trademark in the mind of consumers, yet still distinguish the products.\n \nCONCLUSION\n    \n For the reasons stated above Wacoinda has not infringed or diluted Wakanda’s brand.  Because Wacoinda’s products and services are totally different, to date there is no evidence of confusion, the Wakanda brand is not strong enough to initiate dilution claim, and even if it were, the theory of Trademark Parody does properly shield Wacoinda from liability.",
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      "permlink": "sexual-harassment-in-the-post-trump-election-workplace",
      "title": "Sexual Harassment In The Post-Trump Election Workplace",
      "body": "# #SexualHarassment In The Post-Trump Election Workplace\n\n\n![](https://steemitimages.com/DQmf9ZLLmNXKvk3BrhwGXPq55tpgWZg1WrE1ZWqVPj9wNWk/image.png)\n\n*As an Employment Attorney in New York City, I’ve seen every type of discrimination case on the books.  However, since Trump took office certain cases have started popping up like never before . . . sexual harassment claims. In this three part article series I will elaborate on the lifelong subject of sexual discrimination by first explaining the problem with the law in this article, next strategies and negotiations tactics for the employee, and finally how employers can win before these cases even begin.* \n\n\n\n\n## Introduction\n\nWorking at a major law firm, I spent countless hours managing cases against major executives, and defending some of the largest corporations on the planet.  Then, after leaving the firm, I was able to use that knowledge on the other side of the isle to help individual employees in their quests for justice.  Through that transition I’ve learned that many of the issues that arise between employee and employer have little to do with what the law considers “harassment” and a lot more to do with the state of the employee’s feelings or settling the score.  I feel as though many times when I’m learning the details of a case the plaintiff inevitably has the idea that because the actions taken by an employer are unjust or unfair that the law protects them, but they struggle when I explain that it's not about fairness, or even justice, the law is just… the law.  And that’s really the problem with the process. \n\nSexual Harassment, even in its most heinous form, has less to do with the actual activity on part of the employer, and way, way, more to do with the sufficiency of evidence.  In sum, it's not what you know, it's what you can prove. \nhttps://d1stfe5sz9ezud.cloudfront.net/wp-content/uploads/2013/10/dba50171b2898514f78b73021f150bd9.gif\n\n\nIn fact, that’s all the law cares about, what you can prove, and did you get it in the record.  While Title VII has been the law for well over 50 years, the introduction to Donald J. Trump’s republic has sent the state of sexual harassment into a rare period of flux.  Now is the time, if ever, for a rare and unabashed corporate and individual review of what sexual harassment is and whether those laws jive with what society expects.\n ![](https://steemitimages.com/DQmcWhUnSjRjiQsEt7Q9vD1SRUFHdUvaErjbx87fYkyvNG7/image.png)\n\n## The Law: ![](https://steemitimages.com/DQmeP2qCkSDnQRf8not4n56CoFLJQXGsGEtHFnuuPsJwGUT/image.png)\nThrough Title VII of the Civil Rights Act of 1964, United States Federal law protects individuals from harassment and discrimination on the basis of Race, Pregnancy, Religion, National origin, Disability, Age, and of course our favorite, Sex. \nAnyone can bring a case by filing with the Equal Employment Opportunity Commission so long as their employer is private, has more than 15 employees and less than 180 days has passed since their act of discrimination. \n\n## The Legal Standard: ![](https://steemitimages.com/DQmbAvrF9znjkkE9GW9UUfJvmcDbnhKWRNfhsp38qivPtkR/image.png)\nThe standard for proving a discrimination claim is, at least analytically, quite clear:\n\n###### The “McDonnell Douglas” burden shifting analysis case established that, in an employment discrimination case:\n###### 1.\tThe plaintiff (employee) must first establish a prima facie case of discrimination. \n###### 2.\tThe defendant (employer) must produce evidence of a legitimate non-discriminatory reason for its actions. If this occurs, then the presumption of discrimination dissipates. \n###### 3.\tThe plaintiff must then be afforded a fair opportunity to present facts to show an inference of discrimination. The plaintiff may do so either by showing that the defendant’s explanation is insufficient and only a pretext for discrimination or by otherwise proving that the defendant's actions used one of the listed unlawful discriminatory parameters\n\n\n\nIn essence, the employee has to show through evidence that the employer's’ legitimate business reason is merely a “pretext” for the discrimination, or put another way, that the employer’s reason is untrue, and their reason is not sufficient to overcome the employee’s allegations. \n \n## The Equal Employment Opportunity Commission: ![](https://steemitimages.com/DQmVpz3YyfHF6KpHbFWHGdCHY17Bgsbyx6VVpTX5dzx1zUY/image.png)\nThe EEOC was founded on July 2nd, 1965 through the passage of Title VII of the Civil Rights Act of 1964.  The organization’s first chair was Franklin Delano Roosevelt, Jr. an appointee of President Lyndon B. Johnson. The organization is charged with resolving discrimination issues exhibited by all private, and some public, employers. The EEOC utilizes the civil justice system through federal law to attain its goal of equality. Exercising lawsuits under Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act of 1967 (ADEA), the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA) of 1990, the organization aims to counteract discriminatory policy and behavior by implementing financial disincentives and policy changes.  Specifically, it targets employers who have reportedly exhibited negative behaviors based in whole or in part on an individual's race, color, national origin, religion, sex, age, disability, or employers who have retaliated against an individual for reporting and/or opposing a discriminatory practice.  In 1999 the Commission officially implemented the EEOC Mediation Program: arbitration like counseling session structured in the aims of avoiding actual litigation. The program has strategically resolved roughly 50% of the plaintiff/employer issues with swift and pleasant results.\n\n## The Problem: \n![giphy.gif](https://steemitimages.com/DQmQTTfMaojckRnQrviGDerntYfXN6yx2Bi39u9j3ExqsQs/giphy.gif)\n\nWhile the EEOC was created to try and curtail the vast issues of discrimination in the workplace, they are significantly understaffed and woefully under funded. \n\nWhile you would be hard pressed to find a good Employment Law Attorney who would challenge the logic of the United States Supreme Court in construing how to resolve these very difficult cases, you would be at just as much of a disadvantage trying to find people who agree with that process.  That is in essence the main problem with our sexual harassment laws, when nobody fully understands what our legal process is to address sexual harassment, hardly anyone can fully take advantage of it, or even properly defend these types of claims.\n\nRight now, 75 to 90% of the cases of sexual harassment are thrown out on technical issues like lack of jurisdiction, or failure to file within the required time.  Another 30 to 50% are discarded because of a failure to arbitrate as agreed to during the hiring process.  Still, those few that make it to Federal Court are likely not to make it past one of the many stages of motion practice aimed at knocking it out before a jury or the public gets wind of the case.\n\nWhile it seems employee-plaintiffs may be getting the short end of the stick in this process,  employers are in no better of a position.  Sexual harassment is BIG LAW.  That means that representation does not come cheap.  A major corporation defending a civil action on the basis of sexual harassment can expect to pay a retainer of anywhere between 85 to 200 thousand dollars, win, lose or draw.  Chances are fairly high that most of those cases will be won, however, in the case where a company loses, juries have been known to hand down multiple hundreds of millions in emotional distress and punitive damages.  Check out some of the biggest verdicts. \n\n![](https://steemitimages.com/DQmdHSag7HxCkeyCX8PrYRfLH1sg3x7qXPrrJMFjiRFUKGw/image.png)\n\nThe process is broken.  While the laws on the books give employees a chance to present their case, and employers a chance to defend, that’s not what usually happens.  What happens in reality is, if an employee is sexually harassed and their case is procedurally ripe, they are able to find an attorney to take their case on a contingency-fee basis (usually for a third of the verdict) and it gets moved forward.  If the employee is harassed and their case is not procedurally ripe, or they missed some unknown deadline, the employee can’t find an attorney, and usually has to suffer under the oppression of that boss.\n\nOn the employer side, it’s just as bleak.  Because the law doesn’t provide for an equitable resolution through the court process, the media is usually used as a separate system of justice.  Plaintiff’s counsel, who know verdicts against companies can range anywhere from 100 thousand to 100 million dollars, generally waste no time in airing their version of the harassment all over the news.  Truthfully, these reports can have little effect on the company except to force the shareholders to take notice and “legal-up”.  Employers who are charged with harassment claims have little choice once accused of harassment but to hire expensive counsel and treat the employee as a pariah.\n\n\n## Reflection:![](https://steemitimages.com/DQmazCB7fA8jYe7V9wk8Toj9xx9fUifAXFtczAqkq77SXE7/image.png)\nThe multimillion dollar verdicts, and expensive court proceedings show that at least publicly, society as a whole hates sexual harassment in the workplace and wants to curtail its prevalence on a national scale.  However, that raises the necessary question; do our laws properly achieve that goal?  The reality is, most of the cases of sexual harassment that have come out today, are not new, and have been just as commonplace, as in the 1960’s when Title VII was passed.  The recent change has come in the public’s refusal to ignore the voices of the women who have complained.  Their statements, if taken as true, raise some major questions about how we administer these ladies’ federal complaints. \n\nFor one, if we follow the line of logic, we may begin to question whether having a 180 day blanket rule makes sense.  Naturally, we don’t want accusers coming out the woodwork when it's most opportune for them, but does that mean we totally silence their complaints.  Yes, as time goes by memories begin to fade, and documents disappear, but that is what lawyers get paid to worry about.  Moreover, if the goal is to keep these cases out of the workplace, giving the employer a 180 day cliff, does more to incentivize hiding the issues than resolving them. \n![](https://steemitimages.com/DQmfTrCqxzywCxwt42o8ai2SYhmDokMh5EBGih3FryeQTzj/image.png)\n\n## Conclusion: \nWith the increasing number of claims coming out of the woodworks over the past year, it’s a pretty solid bet that sexual harassment cases will take on more and more of the public’s attention.  What may also begin to happen at some point is that we become desensitized to the most egregious of those cases and lump them all together.  While we all agree that no woman deserves to be “grab[bed] by the pussy”, we are in a time when that seems like less of an issue then trying to “forcibly kiss” someone.  To be fair, both acts are extremely reprehensible, however one act lead to the Presidency, the other lead to a senator’s voluntary resignation by public outcry.\n\nWe need to evaluate whether the laws and enforcement of those laws still capture all of the issues we sought them to cover.  If we feel as though a young woman who was touched by her boss at work, but doesn’t have the resources to hire legal counsel still deserves the right to bring a claim, we might want our elected representatives to make that point and change our laws to reflect this. <iframe width=\"560\" height=\"315\" src=\"https://www.youtube.com/embed/JLVg-PVB0Kc?start=76\" frameborder=\"0\" gesture=\"media\" allow=\"encrypted-media\" allowfullscreen></iframe>\n\n## Next – So you were sexually harassed at work… What are your options?",
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      "title": "Sexual Harassment In The Post-Trump Election Workplace",
      "body": "# #SexualHarassment In The Post-Trump Election Workplace\n\n\n![](https://steemitimages.com/DQmf9ZLLmNXKvk3BrhwGXPq55tpgWZg1WrE1ZWqVPj9wNWk/image.png)\n\n*As an Employment Attorney in New York City, I’ve seen every type of discrimination case on the books.  However, since Trump took office certain cases have started popping up like never before . . . sexual harassment claims. In this three part article series I will elaborate on the lifelong subject of sexual discrimination by first explaining the problem with the law in this article, next strategies and negotiations tactics for the employee, and finally how employers can win before these cases even begin.* \n\n\n\n\n## Introduction\n\nWorking at a major law firm, I spent countless hours managing cases against major executives, and defending some of the largest corporations on the planet.  Then, after leaving the firm, I was able to use that knowledge on the other side of the isle to help individual employees in their quests for justice.  Through that transition I’ve learned that many of the issues that arise between employee and employer have little to do with what the law considers “harassment” and a lot more to do with the state of the employee’s feelings or settling the score.  I feel as though many times when I’m learning the details of a case the plaintiff inevitably has the idea that because the actions taken by an employer are unjust or unfair that the law protects them, but they struggle when I explain that it's not about fairness, or even justice, the law is just… the law.  And that’s really the problem with the process. \n\nSexual Harassment, even in its most heinous form, has less to do with the actual activity on part of the employer, and way, way, more to do with the sufficiency of evidence.  In sum, it's not what you know, it's what you can prove. \nhttps://d1stfe5sz9ezud.cloudfront.net/wp-content/uploads/2013/10/dba50171b2898514f78b73021f150bd9.gif\n\n\nIn fact, that’s all the law cares about, what you can prove, and did you get it in the record.  While Title VII has been the law for well over 50 years, the introduction to Donald J. Trump’s republic has sent the state of sexual harassment into a rare period of flux.  Now is the time, if ever, for a rare and unabashed corporate and individual review of what sexual harassment is and whether those laws jive with what society expects.\n ![](https://steemitimages.com/DQmcWhUnSjRjiQsEt7Q9vD1SRUFHdUvaErjbx87fYkyvNG7/image.png)\n\n## The Law: ![](https://steemitimages.com/DQmeP2qCkSDnQRf8not4n56CoFLJQXGsGEtHFnuuPsJwGUT/image.png)\nThrough Title VII of the Civil Rights Act of 1964, United States Federal law protects individuals from harassment and discrimination on the basis of Race, Pregnancy, Religion, National origin, Disability, Age, and of course our favorite, Sex. \nAnyone can bring a case by filing with the Equal Employment Opportunity Commission so long as their employer is private, has more than 15 employees and less than 180 days has passed since their act of discrimination. \n\n## The Legal Standard: ![](https://steemitimages.com/DQmbAvrF9znjkkE9GW9UUfJvmcDbnhKWRNfhsp38qivPtkR/image.png)\nThe standard for proving a discrimination claim is, at least analytically, quite clear:\n\n###### The “McDonnell Douglas” burden shifting analysis case established that, in an employment discrimination case:\n###### 1.\tThe plaintiff (employee) must first establish a prima facie case of discrimination. \n###### 2.\tThe defendant (employer) must produce evidence of a legitimate non-discriminatory reason for its actions. If this occurs, then the presumption of discrimination dissipates. \n###### 3.\tThe plaintiff must then be afforded a fair opportunity to present facts to show an inference of discrimination. The plaintiff may do so either by showing that the defendant’s explanation is insufficient and only a pretext for discrimination or by otherwise proving that the defendant's actions used one of the listed unlawful discriminatory parameters\n\n\n\nIn essence, the employee has to show through evidence that the employer's’ legitimate business reason is merely a “pretext” for the discrimination, or put another way, that the employer’s reason is untrue, and their reason is not sufficient to overcome the employee’s allegations. \n \n## The Equal Employment Opportunity Commission: ![](https://steemitimages.com/DQmVpz3YyfHF6KpHbFWHGdCHY17Bgsbyx6VVpTX5dzx1zUY/image.png)\nThe EEOC was founded on July 2nd, 1965 through the passage of Title VII of the Civil Rights Act of 1964.  The organization’s first chair was Franklin Delano Roosevelt, Jr. an appointee of President Lyndon B. Johnson. The organization is charged with resolving discrimination issues exhibited by all private, and some public, employers. The EEOC utilizes the civil justice system through federal law to attain its goal of equality. Exercising lawsuits under Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act of 1967 (ADEA), the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA) of 1990, the organization aims to counteract discriminatory policy and behavior by implementing financial disincentives and policy changes.  Specifically, it targets employers who have reportedly exhibited negative behaviors based in whole or in part on an individual's race, color, national origin, religion, sex, age, disability, or employers who have retaliated against an individual for reporting and/or opposing a discriminatory practice.  In 1999 the Commission officially implemented the EEOC Mediation Program: arbitration like counseling session structured in the aims of avoiding actual litigation. The program has strategically resolved roughly 50% of the plaintiff/employer issues with swift and pleasant results.\n\n## The Problem: \n![giphy.gif](https://steemitimages.com/DQmQTTfMaojckRnQrviGDerntYfXN6yx2Bi39u9j3ExqsQs/giphy.gif)\n\nWhile the EEOC was created to try and curtail the vast issues of discrimination in the workplace, they are significantly understaffed and woefully under funded. \n\nWhile you would be hard pressed to find a good Employment Law Attorney who would challenge the logic of the United States Supreme Court in construing how to resolve these very difficult cases, you would be at just as much of a disadvantage trying to find people who agree with that process.  That is in essence the main problem with our sexual harassment laws, when nobody fully understands what our legal process is to address sexual harassment, hardly anyone can fully take advantage of it, or even properly defend these types of claims.\n\nRight now, 75 to 90% of the cases of sexual harassment are thrown out on technical issues like lack of jurisdiction, or failure to file within the required time.  Another 30 to 50% are discarded because of a failure to arbitrate as agreed to during the hiring process.  Still, those few that make it to Federal Court are likely not to make it past one of the many stages of motion practice aimed at knocking it out before a jury or the public gets wind of the case.\n\nWhile it seems employee-plaintiffs may be getting the short end of the stick in this process,  employers are in no better of a position.  Sexual harassment is BIG LAW.  That means that representation does not come cheap.  A major corporation defending a civil action on the basis of sexual harassment can expect to pay a retainer of anywhere between 85 to 200 thousand dollars, win, lose or draw.  Chances are fairly high that most of those cases will be won, however, in the case where a company loses, juries have been known to hand down multiple hundreds of millions in emotional distress and punitive damages.  Check out some of the biggest verdicts. \n\n![](https://steemitimages.com/DQmdHSag7HxCkeyCX8PrYRfLH1sg3x7qXPrrJMFjiRFUKGw/image.png)\n\nThe process is broken.  While the laws on the books give employees a chance to present their case, and employers a chance to defend, that’s not what usually happens.  What happens in reality is, if an employee is sexually harassed and their case is procedurally ripe, they are able to find an attorney to take their case on a contingency-fee basis (usually for a third of the verdict) and it gets moved forward.  If the employee is harassed and their case is not procedurally ripe, or they missed some unknown deadline, the employee can’t find an attorney, and usually has to suffer under the oppression of that boss.\n\nOn the employer side, it’s just as bleak.  Because the law doesn’t provide for an equitable resolution through the court process, the media is usually used as a separate system of justice.  Plaintiff’s counsel, who know verdicts against companies can range anywhere from 100 thousand to 100 million dollars, generally waste no time in airing their version of the harassment all over the news.  Truthfully, these reports can have little effect on the company except to force the shareholders to take notice and “legal-up”.  Employers who are charged with harassment claims have little choice once accused of harassment but to hire expensive counsel and treat the employee as a pariah.\n\n\n## Reflection:![](https://steemitimages.com/DQmazCB7fA8jYe7V9wk8Toj9xx9fUifAXFtczAqkq77SXE7/image.png)\nThe multimillion dollar verdicts, and expensive court proceedings show that at least publicly, society as a whole hates sexual harassment in the workplace and wants to curtail its prevalence on a national scale.  However, that raises the necessary question; do our laws properly achieve that goal?  The reality is, most of the cases of sexual harassment that have come out today, are not new, and have been just as commonplace, as in the 1960’s when Title VII was passed.  The recent change has come in the public’s refusal to ignore the voices of the women who have complained.  Their statements, if taken as true, raise some major questions about how we administer these ladies’ federal complaints. \n\nFor one, if we follow the line of logic, we may begin to question whether having a 180 day blanket rule makes sense.  Naturally, we don’t want accusers coming out the woodwork when it's most opportune for them, but does that mean we totally silence their complaints.  Yes, as time goes by memories begin to fade, and documents disappear, but that is what lawyers get paid to worry about.  Moreover, if the goal is to keep these cases out of the workplace, giving the employer a 180 day cliff, does more to incentivize hiding the issues than resolving them. \n![](https://steemitimages.com/DQmfTrCqxzywCxwt42o8ai2SYhmDokMh5EBGih3FryeQTzj/image.png)\n\n## Conclusion: \nWith the increasing number of claims coming out of the woodworks over the past year, it’s a pretty solid bet that sexual harassment cases will take on more and more of the public’s attention.  What may also begin to happen at some point is that we become desensitized to the most egregious of those cases and lump them all together.  While we all agree that no woman deserves to be “grab[bed] by the pussy”, we are in a time when that seems like less of an issue then trying to “forcibly kiss” someone.  To be fair, both acts are extremely reprehensible, however one act lead to the Presidency, the other lead to a senator’s voluntary resignation by public outcry.\n\nWe need to evaluate whether the laws and enforcement of those laws still capture all of the issues we sought them to cover.  If we feel as though a young woman who was touched by her boss at work, but doesn’t have the resources to hire legal counsel still deserves the right to bring a claim, we might want our elected representatives to make that point and change our laws to reflect this. <iframe width=\"560\" height=\"315\" src=\"https://www.youtube.com/embed/JLVg-PVB0Kc?start=76\" frameborder=\"0\" gesture=\"media\" allow=\"encrypted-media\" allowfullscreen></iframe>\n\n## Next – So you were sexually harassed at work… What are your options?",
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      "title": "Sexual Harassment In The Post-Trump Election Workplace",
      "body": "# #SexualHarassment In The Post-Trump Election Workplace\n\n\n![](https://steemitimages.com/DQmf9ZLLmNXKvk3BrhwGXPq55tpgWZg1WrE1ZWqVPj9wNWk/image.png)\n\n*As an Employment Attorney in New York City, I’ve seen every type of discrimination case on the books.  However, since Trump took office certain cases have started popping up like never before . . . sexual harassment claims. In this three part article series I will elaborate on the lifelong subject of sexual discrimination by first explaining the problem with the law in this article, next strategies and negotiations tactics for the employee, and finally how employers can win before these cases even begin.* \n\n\n\n\n## Introduction\n\nWorking at a major law firm, I spent countless hours managing cases against major executives, and defending some of the largest corporations on the planet.  Then, after leaving the firm, I was able to use that knowledge on the other side of the isle to help individual employees in their quests for justice.  Through that transition I’ve learned that many of the issues that arise between employee and employer have little to do with what the law considers “harassment” and a lot more to do with the state of the employee’s feelings or settling the score.  I feel as though many times when I’m learning the details of a case the plaintiff inevitably has the idea that because the actions taken by an employer are unjust or unfair that the law protects them, but they struggle when I explain that it's not about fairness, or even justice, the law is just… the law.  And that’s really the problem with the process. \n\nSexual Harassment, even in its most heinous form, has less to do with the actual activity on part of the employer, and way, way, more to do with the sufficiency of evidence.  In sum, it's not what you know, it's what you can prove. \nhttps://d1stfe5sz9ezud.cloudfront.net/wp-content/uploads/2013/10/dba50171b2898514f78b73021f150bd9.gif\n\n\nIn fact, that’s all the law cares about, what you can prove, and did you get it in the record.  While Title VII has been the law for well over 50 years, the introduction to Donald J. Trump’s republic has sent the state of sexual harassment into a rare period of flux.  Now is the time, if ever, for a rare and unabashed corporate and individual review of what sexual harassment is and whether those laws jive with what society expects.\n ![](https://steemitimages.com/DQmcWhUnSjRjiQsEt7Q9vD1SRUFHdUvaErjbx87fYkyvNG7/image.png)\n\n## The Law: ![](https://steemitimages.com/DQmeP2qCkSDnQRf8not4n56CoFLJQXGsGEtHFnuuPsJwGUT/image.png)\nThrough Title VII of the Civil Rights Act of 1964, United States Federal law protects individuals from harassment and discrimination on the basis of Race, Pregnancy, Religion, National origin, Disability, Age, and of course our favorite, Sex. \nAnyone can bring a case by filing with the Equal Employment Opportunity Commission so long as their employer is private, has more than 15 employees and less than 180 days has passed since their act of discrimination. \n\n## The Legal Standard: ![](https://steemitimages.com/DQmbAvrF9znjkkE9GW9UUfJvmcDbnhKWRNfhsp38qivPtkR/image.png)\nThe standard for proving a discrimination claim is, at least analytically, quite clear:\n\n###### The “McDonnell Douglas” burden shifting analysis case established that, in an employment discrimination case:\n###### 1.\tThe plaintiff (employee) must first establish a prima facie case of discrimination. \n###### 2.\tThe defendant (employer) must produce evidence of a legitimate non-discriminatory reason for its actions. If this occurs, then the presumption of discrimination dissipates. \n###### 3.\tThe plaintiff must then be afforded a fair opportunity to present facts to show an inference of discrimination. The plaintiff may do so either by showing that the defendant’s explanation is insufficient and only a pretext for discrimination or by otherwise proving that the defendant's actions used one of the listed unlawful discriminatory parameters\n\n\n\nIn essence, the employee has to show through evidence that the employer's’ legitimate business reason is merely a “pretext” for the discrimination, or put another way, that the employer’s reason is untrue, and their reason is not sufficient to overcome the employee’s allegations. \n \n## The Equal Employment Opportunity Commission: ![](https://steemitimages.com/DQmVpz3YyfHF6KpHbFWHGdCHY17Bgsbyx6VVpTX5dzx1zUY/image.png)\nThe EEOC was founded on July 2nd, 1965 through the passage of Title VII of the Civil Rights Act of 1964.  The organization’s first chair was Franklin Delano Roosevelt, Jr. an appointee of President Lyndon B. Johnson. The organization is charged with resolving discrimination issues exhibited by all private, and some public, employers. The EEOC utilizes the civil justice system through federal law to attain its goal of equality. Exercising lawsuits under Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act of 1967 (ADEA), the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA) of 1990, the organization aims to counteract discriminatory policy and behavior by implementing financial disincentives and policy changes.  Specifically, it targets employers who have reportedly exhibited negative behaviors based in whole or in part on an individual's race, color, national origin, religion, sex, age, disability, or employers who have retaliated against an individual for reporting and/or opposing a discriminatory practice.  In 1999 the Commission officially implemented the EEOC Mediation Program: arbitration like counseling session structured in the aims of avoiding actual litigation. The program has strategically resolved roughly 50% of the plaintiff/employer issues with swift and pleasant results.\n\n## The Problem: \n![giphy.gif](https://steemitimages.com/DQmQTTfMaojckRnQrviGDerntYfXN6yx2Bi39u9j3ExqsQs/giphy.gif)\n\nWhile the EEOC was created to try and curtail the vast issues of discrimination in the workplace, they are significantly understaffed and woefully under funded. \n\nWhile you would be hard pressed to find a good Employment Law Attorney who would challenge the logic of the United States Supreme Court in construing how to resolve these very difficult cases, you would be at just as much of a disadvantage trying to find people who agree with that process.  That is in essence the main problem with our sexual harassment laws, when nobody fully understands what our legal process is to address sexual harassment, hardly anyone can fully take advantage of it, or even properly defend these types of claims.\n\nRight now, 75 to 90% of the cases of sexual harassment are thrown out on technical issues like lack of jurisdiction, or failure to file within the required time.  Another 30 to 50% are discarded because of a failure to arbitrate as agreed to during the hiring process.  Still, those few that make it to Federal Court are likely not to make it past one of the many stages of motion practice aimed at knocking it out before a jury or the public gets wind of the case.\n\nWhile it seems employee-plaintiffs may be getting the short end of the stick in this process,  employers are in no better of a position.  Sexual harassment is BIG LAW.  That means that representation does not come cheap.  A major corporation defending a civil action on the basis of sexual harassment can expect to pay a retainer of anywhere between 85 to 200 thousand dollars, win, lose or draw.  Chances are fairly high that most of those cases will be won, however, in the case where a company loses, juries have been known to hand down multiple hundreds of millions in emotional distress and punitive damages.  Check out some of the biggest verdicts. \n\n![](https://steemitimages.com/DQmdHSag7HxCkeyCX8PrYRfLH1sg3x7qXPrrJMFjiRFUKGw/image.png)\n\nThe process is broken.  While the laws on the books give employees a chance to present their case, and employers a chance to defend, that’s not what usually happens.  What happens in reality is, if an employee is sexually harassed and their case is procedurally ripe, they are able to find an attorney to take their case on a contingency-fee basis (usually for a third of the verdict) and it gets moved forward.  If the employee is harassed and their case is not procedurally ripe, or they missed some unknown deadline, the employee can’t find an attorney, and usually has to suffer under the oppression of that boss.\n\nOn the employer side, it’s just as bleak.  Because the law doesn’t provide for an equitable resolution through the court process, the media is usually used as a separate system of justice.  Plaintiff’s counsel, who know verdicts against companies can range anywhere from 100 thousand to 100 million dollars, generally waste no time in airing their version of the harassment all over the news.  Truthfully, these reports can have little effect on the company except to force the shareholders to take notice and “legal-up”.  Employers who are charged with harassment claims have little choice once accused of harassment but to hire expensive counsel and treat the employee as a pariah.\n\n\n## Reflection:![](https://steemitimages.com/DQmazCB7fA8jYe7V9wk8Toj9xx9fUifAXFtczAqkq77SXE7/image.png)\nThe multimillion dollar verdicts, and expensive court proceedings show that at least publicly, society as a whole hates sexual harassment in the workplace and wants to curtail its prevalence on a national scale.  However, that raises the necessary question; do our laws properly achieve that goal?  The reality is, most of the cases of sexual harassment that have come out today, are not new, and have been just as commonplace, as in the 1960’s when Title VII was passed.  The recent change has come in the public’s refusal to ignore the voices of the women who have complained.  Their statements, if taken as true, raise some major questions about how we administer these ladies’ federal complaints. \n\nFor one, if we follow the line of logic, we may begin to question whether having a 180 day blanket rule makes sense.  Naturally, we don’t want accusers coming out the woodwork when it's most opportune for them, but does that mean we totally silence their complaints.  Yes, as time goes by memories begin to fade, and documents disappear, but that is what lawyers get paid to worry about.  Moreover, if the goal is to keep these cases out of the workplace, giving the employer a 180 day cliff, does more to incentivize hiding the issues than resolving them. \n![](https://steemitimages.com/DQmfTrCqxzywCxwt42o8ai2SYhmDokMh5EBGih3FryeQTzj/image.png)\n\n## Conclusion: \nWith the increasing number of claims coming out of the woodworks over the past year, it’s a pretty solid bet that sexual harassment cases will take on more and more of the public’s attention.  What may also begin to happen at some point is that we become desensitized to the most egregious of those cases and lump them all together.  While we all agree that no woman deserves to be “grab[bed] by the pussy”, we are in a time when that seems like less of an issue then trying to “forcibly kiss” someone.  To be fair, both acts are extremely reprehensible, however one act lead to the Presidency, the other lead to a senator’s voluntary resignation by public outcry.\n\nWe need to evaluate whether the laws and enforcement of those laws still capture all of the issues we sought them to cover.  If we feel as though a young woman who was touched by her boss at work, but doesn’t have the resources to hire legal counsel still deserves the right to bring a claim, we might want our elected representatives to make that point and change our laws to reflect this. <iframe width=\"560\" height=\"315\" src=\"https://www.youtube.com/embed/JLVg-PVB0Kc?start=76\" frameborder=\"0\" gesture=\"media\" allow=\"encrypted-media\" allowfullscreen></iframe>\n\n## Next – So you were sexually harassed at work… What are your options?",
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