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April 2024
Welcome to readers of Making the Connection!  
In this issue, you will find: 
  • In Focus: Reflections on the New York State Bar Association Mediation Tournament
  • Question of the Month, answering a question about when commissions are "earned"
  • Case on Point, discussing the fair use defense to trademark infringement
  • At the Podium, listing my speaking engagements and public appearances
  • Client Corner, spotlighting client events and announcements
In Focus
Reflections on the New York State Bar Association Mediation Tournament
New York state courts are migrating to a presumptive ADR model in which most cases are referred to mediation or judicial settlement conferences in the hopes that they will be resolved expeditiously through negotiation in a way that is acceptable to the parties. Often though, the attorneys representing the parties are not familiar with mediation and bring their litigator habits rather than their negotiation skills to the table, to the detriment of the process. To better prepare today's law students to participate in such processes, most law schools are integrating practical skills such as client counseling and negotiation into their curricula, and it is anticipated that the bar exam will be updated to include testing on such skills.
The New York Bar Association has established an annual Mediation Tournament for law students to further encourage and support the development of mediation-related skills, including mediating and mediation advocacy.  For the last three years, I have served as the coach of the Touro Law School Mediation team.  It has been a rewarding experience to cultivate my students' skills in analyzing complex scenarios, identifying the parties' interests and concerns, developing potential approaches to resolution and counseling their clients throughout the process, and to attend the Tournament and observe students from all competing law schools demonstrate their mastery of these skills.
Question of the Month
Q:Must employers pay commissions to departing employees for sales they have initiated?

A: Yes, employers must pay terminated or departing employees any commissions that are considered "earned" under the terms of the commission agreement.  Depending on the terms of the agreement, that may be when an order is placed, when the product or service has been provided, or when payment for the sale is received by the employer. If the commission agreement does not address this issue, then New York State Department of Labor will consider it earned when the salesperson produces "a person ready, willing, and able to enter into a contract upon the employer’s terms."
Case On Point
Solid 21, Inc. v. Breitling USA, Inc.,
(2d Cir. 2024)

Solid 21, Inc. is a manufacturer of watches and other luxury jewelry items. It registered the trademark "Red Gold" for its line of products made from a combination of gold and copper, and having a reddish tint.  Breitling is also a purveyor of watches and luxury jewelry, including products made from the same combination.  Breitling used the term "red gold" to describe such products in its advertising.

Solid 21 sued Breitling for trademark infringement.  The Court of Appeals affirmed the district court's grant of summary judgment, finding that Breitling's use of the term fell within the fair use defense to trademark infringement. To prevail on such a defense, Breitling had to show the mark was:
  • not used as a mark to designate the source of the product;
  • was used in a descriptive sense; and
  • was not used in bad faith.
In this instance, the mark was used solely to describe the shade of gold used in the product.  In fact, "red gold" or "rose gold" are terms that have been used historically to describe gold blended with copper, as compared to white gold, for example, which is gold mixed with silver. The court also found that the term was not used by Breitling to identify its source, or to trade on the goodwill of Solid 21. 


At the Podium
This is a listing of speaking engagements, workshops, events and other public appearances.  To book me as a speaker or facilitator at your next company, client or association function, contact me at    
  • I was delighted to have been interviewed by Moxxie Mentoring Foundation for Women's History Month. Click here to check out the post about Martina Navratilova as a source of inspiration.
  • On April 1, 2024, I will be a visiting lecturer at class on Business Law at Borough of Manhattan Community College.

Client Corner
Client Corner features client announcements and events of potential interest to readers.

  • On April 4, 2024, Moxxie Network is hosting a Midday with Moxxie networking lunch at Limani Taverna from 12:30 to 2pm.  Click here for information and registration.

80 Orville Drive, Suite 100 | Bohemia, NY 11716
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