Category: News Feeds

In April, I wrote about the murky legality of hemp-derived Delta-8 tetrahydrocannabinol (Delta-8 THC), cautioning any companies wishing to enter this market of the potential risks associated with dealing with this trendy cannabinoid. In the same piece, I also emphasized the importance of gaining a thorough understanding of the relevant state laws before engaging in these activities to ensure compliance with all applicable laws and regulations.

Now, just four weeks following this publication, these recommendations seem particularly relevant as a growing number of states have passed legislation or have released policy statements clarifying that the manufacture and sale of Delta-8 THC and its derived products are illegal within their borders. To date, 15 states have deemed the most popular cannabinoid to be unlawful. These states include Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa,  Kentucky, Mississippi, Montana, Oregon, Rhode Island, Utah, Vermont, and Washington.

Many of these state bans stem from the conclusion that federal law treats Delta-8 THC as a schedule I controlled substance under the federal Controlled Substances Act (CSA). This is because the cannabinoid, which is not expressed in sufficient concentrations in most hemp cultivars to make its extraction economically viable, is produced through isomerization, a chemical reaction that combines hemp-derived CBD with a solvent, acid, and heat. As such, Delta-8 THC is likely treated as a “synthetically derived THC” substance, and thus, illegal under federal law.

In addition, state regulators are concerned with the regulatory gaps surrounding Delta-8 THC and its derived products. Specifically, they fear that these products, which are unregulated, and thus, more susceptible to being unsafe for human consumption, have become widely available, including to children.

Interestingly, these state bans have polarized the hemp industry.

A segment of hemp stakeholders, including the U.S. Hemp Authority, an organization that creates regulatory standards and certifies hemp businesses through third-party auditing, welcomes these recent legislative and regulatory changes as they fear Delta-8 THC has the potential to destroy years of efforts convincing lawmakers that hemp is a nonintoxicating, versatile commodity that offers a wide range of commercial opportunities for farmers, manufacturers, distributors, and retailers. Indeed, Delta-8 THC is primarily coveted for its psychoactive effects, so it is easy to see how the substance could further stigmatize and bring down the entire industry before it has an opportunity to show the plant’s full potential.

On the other hand, supporters of Delta-8 THC and of its tremendous financial opportunity for hemp businesses — many hemp stakeholders, particularly farmers, have found a new sales avenue after oversupply devastated the hemp biomass and CBD markets — argue that these bans totally disregard the legalization of hemp and of its derivatives under the Agriculture Improvement Act of 2018 (2018 Farm Bill). Though it is true that the 2018 Farm Bill broadly defines “hemp” to include hemp isomers and derivatives, which it legalized by removing the term from the CSA, it also seems clear that the federal law did not intend to legalize any form of cannabis that gets users high, as reflected in the provisions imposing a Delta-9 THC limit of no more than 0.3%. So while a literal reading of the 2018 Farm Bill suggests Delta-8 THC is legal, its context implies that it violates the spirit of the law.

But whether you agree with this opinion and the decisions made by the 15 state legislators and regulators discussed in this piece, one thing is certain: the language of the 2018 Farm Bill has created lingering confusion and statutory ambiguities surrounding hemp, its derivatives, extracts, and cannabinoids, including the murky legal status of hemp-derived Delta-8 THC, which should be clarified by its author, Congress.

Nathalie practices out of Harris Bricken’s Portland office and focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. For two consecutive years, Nathalie has been selected as a “Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys.  Nathalie is also a regular contributor to her firm’s Canna Law Blog.

More than a decade ago, major legal research platforms Lexis and Westlaw freed their subscribers from Boolean searches by introducing natural language search. But freedom from Boolean searches did not mean freedom from results limited to literal keyword matches. The concept-matching enabled by the neural net that powers Parallel Search is a a “great leap forward” and superior to anything enabled by earlier systems. Pablo Arredondo, co-founder and chief product officer at Casetext, refers to traditional natural language search as “casual Friday in the prison of the keyword.” In other words, a lawyer was still at the mercy of which specific words he chose for his query.

Now that all adults are eligible for the COVID vaccine, many pandemic-related restrictions are being lifted. However, many of us are hitting a pandemic wall and continue to face burnout. To help you combat any stress and anxieties and stay up-to-date on all of the latest COVID implications, Lawline is highlighting Well-Being Week in Law with a series of wellness programs, and continuing to highlight the pandemic’s effect on the legal profession. Check out some highlights below:

• Navigating Health Coverage Impacting Sexual Orientation and Gender Identity. This program will discuss issues in health coverage affecting sexual orientation and gender identity, including non-discrimination laws, laws protecting medical treatment and coverage, and taxability of benefits and surrogacy. Airing May 18, 2021 at 10:00 a.m. (EST)
• Understanding the Legal Implications of Surveillance, Social Media & Spying. Surveillance has become increasingly commonplace, however the laws governing it are complicated. This program will help attorneys utilize surveillance evidence and social media profiling through discussions of the law surrounding various types of surveillance, privacy statutes, the Wiretap Act, the General Data Privacy Regulations, and the California Consumer Privacy Act. Airing May 20, 2021 at 10:00 a.m. (EST)
• What Stories Do the Dead Tell? Understanding Postmortem Toxicology for Attorneys. This program guides attorneys through everything they need to know about postmortem toxicology, including what happens to the body after death, postmortem drug levels, sources of drug levels after death, and how to work with postmortem experts. Airing May 24, 2021 at 12:00 p.m. (EST)

If you can’t attend a live webcast, don’t worry! All of our courses go on-demand within 48 hours after airing (and you can check them out with our free trial). Check out some recent highlights:

• Depression: An Occupational Hazard of the Legal Profession. Substance abuse and mental health disorders are prevalent in the legal profession and the stigma associated with mental health often obstructs attorneys from reaching out for help. This program provides an overview of depression, why attorneys with mental health disorders should seek help, intervention strategies, and resources and lawyers’ assistance programs available to attorneys. Originally aired on January 29, 2021
• Navigating Vaccine Injury Litigation During a Global Pandemic: The VICP, CICP, and COVID-19. The National Childhood Vaccine Injury Act established the National Vaccine Injury Compensation Program, which was designed to compensate anyone injured by a vaccine. This program will review the requirements for eligibility for compensations under this program, the scope of damages recoverable, and what to expect for injuries due to the COVID-19 vaccine which are being processed in the Countermeasures Injury Compensation Program. Originally aired on April 5, 2021
• Remote Trial Considerations: Juries, Witnesses & Evidence. As many attorneys will most likely continue to work remotely beyond the pandemic, this program aims to explore best practices for conducting remote trials, including jury selection, bench vs. jury trials, voir dire, cross-examination, and evidence. Originally aired on April 15, 2021

Related Content:

1. Saving Your Sanity: Four Wellness Tips from Leading Legal Educators
2. Is There Liability for Injury Resulting from Administration of the COVID-19 Vaccine?
3. Striving for a (Realistic) Attorney Work/Life Balance in 2021

I expect everyone who wants to come in will come on July 6. There will be more life in the office. With the summer class wanting to be there, we think it’s important to be there. …

We’ve been very clear to all the partners and to all the associates that no one should feel pressured to come in. We’re encouraging them [to return] on July 6 — assuming they’re fully vaccinated, that they’re comfortable traveling in the office and comfortable being there, and they make their own schedule.

— Joseph Shenker, chair of Sullivan & Cromwell, in comments given to the American Lawyer, countering Above the Law’s coverage on the firm’s reopening plan, where numerous associates reported that the plan was mandatory, that they were unhappy with it, and that remote work seemed like it would not be a possibility. Following Am Law’s interview with Shenker, additional associates reached out to ATL, with one source noting, “Everyone is angry and frustrated. We think it’s absurd and completely unmindful of our safety and need for flexibility as we still deal with pandemic-related constraints.” The firm did not, and still has not, responded to our requests for comment.

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Kraken lawyer Sidney Powell has said a lot of crazy shit. From alleging that the presidential election was rigged by an evil cabal of Venezuelan Iranian Marxists, to insisting that she needed to shield the identity of the rando internet conspiracy theorists with major credibility problems she was trying to pass off as super-secret spy types for “safety,” Powell has refused to be silenced. Not by the woke mob, and not by common sense.

So it comes as no surprise that the billion dollar defamation suit from Dominion Voting Systems hasn’t slowed her down a bit.

In a motion to dismiss filed in March, Powell’s lawyers labored valiantly to paint her claims about the company as protected expressions of opinion.

“[R]easonable people would not accept such statements as fact but view them only as claims that await testing by the courts through the adversary process,” they insisted. Which is not a terrible argument, even if it subjected their client to widespread ridicule for attempting an “I’m Full of Shit” defense. Sure it was immediately invoked by state plaintiffs as proof that Powell knew the multiple tentacles of her squid lawsuits were rotten from the get go. But that’s an issue of a few thousand dollars in legal fees, not a ten-figure defamation claim.

Powell could not leave well enough alone, though, so she headed for conservative pardon aficionado Dinesh D’Souza’s podcast to defend herself.

“Are you backtracking from what you said before?” D’Souza asked

“Oh no, I am not backtracking a bit,” she replied. “What they are misquoting from and taking out of context is the statement from a new decision out of the D.C. Circuit that is binding in my case.”

(The what now? How is a motion to dismiss a “new decision out of the D.C. Circuit?”)

But Powell wasn’t done.

D’SOUZA:  So you’re not taking any of it back. You’re not taking refuge in the distinction between fact and opinion. It seems to me what you’re saying is, “Yes, I have the opinion that there was widespread fraud, but this is not an opinion free floating in the ether. It’s an opinion anchored in a whole bunch of testimonies, affidavits, all types of evidence, statistical evidence, and so on. It’s opinion that is rooted in fact.

POWELL:  I’m not backing up one inch. Everything I said about Dominion, I had a factual basis for. Any reasonable person looking at the evidence I’ve seen would have to come to the same conclusion. And I would encourage people to go to my website sidneypowell.com and look at that evidence themselves. We uploaded it, all the pleadings to the website and people can read it themselves, or at defendingtherepublic.org. … We have done the math and more math is coming. … They not only ran an algorithm in the machine to shave votes, which their own manual admits they can do, so they weighted Biden votes at say 1.26 and they weighted Trump votes at .74. So a Trump vote only counted ¾ and a Biden vote counted 1 ¼. That ran standard across the country as best we can tell from the evidence we’re collecting. And then there was specific flipping of votes in any number of key states and cities. In fact, if you think about it, they only really had to take over six key cities, all of which happen to be Democratic strongholds, to flip this election for Biden. And we’re gathering more evidence every day of how the votes were flipped and where and how many.

After Thomas Clare and his associates quit laughing, they got busy on their opposition to Powell’s motion to dismiss. And they included this helpful link to the video in case Judge Carl Nichols isn’t familiar with the Rumble platform.

“In sum, after representing to this Court that ‘no reasonable person would conclude that [her] statements were truly statements of fact,’” they wrote, “Powell went on television the following week to tell viewers ‘there was, in fact, widespread fraud through this election.’”

And in case that wasn’t clear enough, they point out that Powell didn’t express an opinion as to whether Dominion has a face only a mother could love, she accused it of committing actual crimes in fact.

Powell’s statements are provably false. She either has a video of Dominion’s founder admitting that he can change a million votes or she does not (she does not). Dominion was either created in Venezuela to rig elections or it was not (it was not). Dominion either rigged the 2020 election by weighting, flipping, switching, and trashing votes or it did not (it did not). Dominion either bribed officials or it did not (it did not). Powell’s own motion confirms that her statements are susceptible of being proven false by disputing that they are false.

Well, when you put it like that …

U.S. Dominion, Inc. v. Powell [Docket via Court Listener]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

NFL offensive lineman Ja’Wuan James tore his Achilles while working out. The normal reaction would be to empathize with his situation but find a silver lining based on James earning his expected salary while injured. However, James’ situation may be much direr due to where the injury was sustained.

On May 5, the NFL Management Council disseminated a memorandum based on several NFL teams asking about the contractual implications resulting from the fact that James’ injury occurred away from his team’s — the Denver Broncos — facility, and whether James’ $10 million salary, fully guaranteed for skill, injury, and salary cap purposes, could be stricken.

“Injuries sustained while a player is working out ‘on his own’ in a location other than an NFL facility are considered ‘Non-Football Injuries’ and are outside the scope of a typical skill, injury and cap guarantee,” states the memo. “Such injuries are also not covered by protections found in paragraph 9 of the NFL Player Contract, meaning that clubs have no contractual obligation to provide salary continuation during the year in which the injury was sustained.”

The above is distinguished from what is considered to be “Football-Related Injuries,” which include injuries sustained by a player while he is working out at a club facility.

The NFL has recognized that several players have expressed surprise over the distinction, including Kansas City Chiefs quarterback Patrick Mahomes. He has a point. Why would a player be penalized for working out, regardless of the location of the workout, which in most cases would prevent injury and put the player in a position to be prepared for the rigors of participating in the NFL?

Instead of addressing the questionable purpose that supports a distinction being made for someone like James, the NFL focused the end of its memo on calling out the NFL Players Association which, as noted by former NFL second-round pick Mitchell Schwartz, has encouraged many players to voluntarily stay away from teams’ facilities during the offseason.

“Clubs are encouraged to remind players of the significant injury-related protection provided if they choose to work out at the club facility and the risks they undertake in choosing to train in non-NFL locations,” states the memo. This appears to be a statement made in direct response to players from 20 teams choosing to boycott voluntary offseason workouts at their teams’ facilities citing COVID-19 concerns.

It is not yet known whether the Broncos will attempt to void James’ salary based on the season-ending injury he has sustained. More likely than not, the NFL Players Association will fight the team if it tries to avoid its normal compensation obligations with James, probably resting heavily on the change of conditions and obligation to adjust for the concerns that remain revolving around COVID-19. However, those concerns are likely losing their probative value as vaccines continue to be made readily available to the general population around the United States.

Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

Kate Bally is Director of Labor and Employment Service at Thomson Reuters Practical Law.

Her previous experience includes clerking for the U.S. District Court, District of Connecticut, working at the Center for Reproductive Rights, and work in private practice focused on employment law.

Today, Kate offers some practical advice concerning pandemic-related employment law issues, describes new trends affecting in-house lawyers when it comes to cannabis legalization, and details how to minimize the risk of sexual harassment claims like the allegations facing Governor Cuomo.

(This interview has been edited for length and clarity.)

JW: Can I call you Kate?

KB: Absolutely, everyone does.

Great. I took the liberty of stalking your LinkedIn profile a little before the interview, looks like after law school you had a federal district court clerkship, served a brief stint at the Center for Reproductive Rights, and then were in private practice before arriving at your current organization. Is that fairly accurate?

Yeah, thanks for doing your homework. I’m an employment lawyer by trade. I started with Practical Law in 2009. Thomson Reuters then acquired Practical Law in 2013.

What drew you to employment law?

The subject is fascinating, the law is complex, and the human element makes the subject relatable. Plus, my father was an employment lawyer, and he had great cocktail party stories. 

I guess it runs in the family. What do you do now at Practical Law?

I serve as director of a team of 23, and we write about a wide range of topics within the employment law field. We provide content to help busy lawyers practice more efficiently. As one of my colleagues says, our job is to help people get their kids to their soccer games.

We’re really providing resources that allow companies and their attorneys to more easily navigate their obligations under complex and changing laws. We provide a know-how service. We’re trying to be, for the people who need it, that lawyer down the hall who you can ask questions to.

And we’re providing a lot of context and analysis that is useful practically in getting to a result, as our name suggests. We’re answering the question, “Why does it matter to my practice?” not just quoting the statutes and the case law.

So what have you been dealing with most recently in light of the pandemic?

It’s been a busy season! There was a form of paid leave for the first time at the federal level, that’s been a remarkable departure from prior law. Federal FMLA leave has been traditionally unpaid leave, but for a portion of 2020, an amendment made that leave paid leave for the first time. There had been paid leave at the state level in some jurisdictions, and even before the new federal mandates on paid leave, content on state-level paid leave was one of the most popular Practical Law resources in the L&E space. Employers are always trying to figure out what sort of leave they have to provide.

It’s not just paid leave though, everything has changed about work. People were never working remotely so much before. This brings up privacy concerns, it affects non-competes — if you can work anywhere, what do the geographic restrictions in non-competes mean? People moving from one state into another but staying with the same employer now often have different rights regarding getting reimbursed for business expenses. Carryover for leave can vary by state.

And then there are all the things that haven’t just expanded or crossed borders, they’re here for the first time. Social distancing, temperature checks, vaccine policies, no employers had these before, so we’re getting a lot of questions in those areas. Employers want to know if they can provide employee incentives for these things, or even just mandate them.

Can employers require vaccinations?

The EEOC issued guidance that said yes, you can mandate vaccines if you want to, but you have to make exceptions for legitimate medical issues and sincerely held religious beliefs. We actually have a great COVID-19 employment law tracker that we’ve unlocked. It tracks federal laws, agency guidance, all of the state laws that are relevant to COVID. We’re providing the tracker as a service; I can send you a link to share if you’d like.

That would be fantastic. Well, we were going to try to cover a couple more hot employment law topics, and I’m already going to be at a lot of words on this one.

Sorry about that!

No, no worries, it’s interesting. Lots of words can be good. So what’s going on with Governor Cuomo? Seems like he’s in some employment law hot water.

Cuomo’s not alone. In the midst of the #MeToo movement, we’ve really been trying to address how else we tackle this problem, other than the typical sexual harassment prevention trainings and policies, some of which are pretty bad. Unfortunately, a lot of the trainings out there are people saying, “How do we just check this box?” Something like 75 percent of people who claim to be harassed say there was also retaliation for reporting the harassment. People don’t feel supported and encouraged unless they have a safe environment to make these complaints.

There was a report that came from the EEOC in 2017 with five tenets that have actually proven effective in addressing workplace harassment issues. Probably the most important of the five in my view is leadership from the top: clear, frequent, and unequivocal condemnation of harassment from the leadership roles is just critical for people throughout the organization to take harassment seriously. Accountability, consistent follow through, is another big one.

If you don’t actually do what you said you were going to do, it’s not going to help you in a legal defense or in your compliance work.  

Sound advice. Well, let’s move on to marijuana, I think we were going to cover that a bit too.

Practical Law has had a ton to say on marijuana lately, there has been so much movement in this area. New York, New Mexico, Virginia, and a number of other states have new legalization laws coming into effect. We have a tracker for new marijuana laws to help keep pace with these changes.

The culture is changing, and legislatures are changing with it. When states started to legalize marijuana, it was a light touch on what was changing. But now we’re really changing at a fast pace.

Have any examples?

As recently as 2015 there was a pro-employer case out of Colorado that left employers with the impression that terminations for positive drug tests for THC, even with a medical marijuana card, were lawful. Now you cannot even test for marijuana in pre-employment screening in New York City. In New Jersey, just testing positive is not enough for employers to impose consequences, they have to prove actual impairment at work. It’s a much higher burden on employers. In Arizona, for example, if an employer finds THC in the system of a medical marijuana user without additional evidence of impairment, that employee now has a private right of action to sue if terminated — that would have been shocking 10 years ago.

I think we’re going to see more court opinions favorable to employees. There’s thought to be a racial bias aspect to legacy marijuana laws that courts are increasingly eager to address. I don’t know that we’ll see any changes at the federal level soon, but there’s some movement there as well. Even though many states have legalized medical marijuana, there is still some reticence on recreational use. For example, we’re seeing some pushback from Minnesota Republicans right now on legalizing recreational use.

It’s too much fun, that’s the problem. I’m based in Minnesota, and we’re always the last to authorize anything fun.

The culture is changing and with it, legislatures and courts as well. They are more actively considering, “What is the harm of having THC in your system?” Even with legalization spreading and the culture changing, employers and employees have a lot of unanswered questions, and we may start to see guidance on these questions in the future. It’s confusing to employers and employees alike.

Indeed it is. Well, any parting words?

Just that we’re not done with the coronavirus yet, unfortunately. We have a lot of vaccine content, safe reopening content, that we’re updating all the time right now. Some states are considering vaccine passports, others, like Utah, are saying they don’t support a mandate around vaccination, so that’s going to continue to be an area of focus for the foreseeable future.

And thank you for taking the time to talk to me. I’m a huge fan of Above the Law, I read it all the time.

Well, thank you. Flattery will get you everywhere.

I actually did an interview with ATL about my experience as a federal clerk a few years ago.

You should save me some Googling and send me the link to that, I’ll include it for the readers.

Absolutely, I’ll do that.

Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

One by one, top Biglaw firms are announcing their plans for their eventual return to the office in the wake of the pandemic. Several other firms have already laid out three-part reopening plans, each with varying levels of flexibility for the amount of time attorneys would have to be present in the office. We now have news of perhaps the most flexible reopening plan of them all, and it comes from one of the most successful firms in the country.

Back in February, Ropes & Gray announced that it was setting its sights on a September reopening. Yesterday, during a firmwide town hall meeting, chair Julie Jones laid out the firm’s vision for a return to work for attorneys, in three phases. Here are the key points from a follow-up memo (available in full on the next page) that she sent last night to reiterate all that was said:

Phase 1 (now through the summer)—experience the office if you can. As we mentioned in our February message, our permissive, and entirely optional, use of the offices continues into September.

Phase 2 (targeted for the week of Sept. 13)—we recommend that you spend time in the office more regularly, one to two days a week.

Phase 3 (likely November through 2022)—we will look for a more regular rhythm to office life, and recommend that you spend the majority of your work week (three days a week) in the office.

For associates, these were likely the two most important sentences from Jones’s email: “No matter what phase we are in, we endorse flexibility post-pandemic. We don’t expect that we’ll ever mandate a five-day a week in-office environment.” Yes, you read that correctly. Ropes & Gray — a firm that brought in $2,192,810,000 gross revenue in 2020, placing it at No. 11 in the most recent Am Law 100 ranking — is not likely to require that attorneys spend five days in the office, ever again.

For a Biglaw firm of Ropes & Gray’s stature to announce an indefinite policy like this is huge. With this announcement, did Ropes just end the five-day, in-office workweek for good? We’ll have to see if this turns into a trend that catches on across more Biglaw firms.

Sources we’ve heard from say they really appreciate the ramp-up time the firm is allowing for them to reacquaint themselves with office life, and that the flexibility being offered here is what really makes Ropes & Gray a fantastic place to work.

Congratulations to the firm for creating a reopening plan that focuses on flexibility for all attorneys, making very clear that “Ropes is about people, not place.”

What has your firm announced as far as a reopening plan is concerned? The more information is out there, the more likely it is that firms will be able to establish a market standard for a return to work.

As soon as you find out about reopening plans at your firm, please email us (subject line: “[Firm Name] Office Reopening”) or text us at (646) 820-8477. We always keep our sources on stories anonymous. There’s no need to send a memo (if one exists) using your firm email account; your personal email account is fine. If a memo has been circulated, please be sure to include it as proof; we like to post complete memos as a service to our readers. You can take a photo of the memo and attach as a picture if you are worried about metadata in a PDF or Word file. Thanks.

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Trademark law has been increasing in popularity and importance in recent years, particularly as businesses were forced to shift and rebrand in the last year. Unfortunately, though, there have historically been very few offerings in the way of comprehensive training for attorneys who are just starting out with trademarks.

We recently sat down with Stacey Kalamaras, a seasoned trademark attorney and the founder of Trademarkabilities, an online trademark academy designed to fill that gap and give U.S. attorneys the comprehensive instruction they need to successfully handle trademark matters. Kalamaras shared her thoughts on why trademarks are so important, how attorneys can gain the confidence to handle trademark work, and more.

Tell us a little bit about your background and how it led up to you founding Trademarkabilities.

My background is unique. I’m a second-career attorney – I spent my first career in marketing and advertising, building brands for multinational corporations, before I gave that up to go back to law school full time. I had really fallen in love with the area of brand management and was working with in-house counsel who do what I do now, and that’s where I learned what intellectual property law was. The prospect of making a living by legally protecting brands was fascinating to me. I decided to take all the institutional and industry knowledge I had and use it to become a brand protection lawyer.

Why did you create Trademarkabilities?

When I started my career in Biglaw, I had access to some wonderful practitioners who gave me a lot of formal training. Adding that to my understanding of the business of brands from my previous career put me in a great position. I started my own firm in 2009, then went in-house where I met a lot of solo and small firm practitioners who were struggling without the type of training and mentoring resources I had in Biglaw.

I went back to Biglaw in 2014 and realized that the training I had received doesn’t exist as much anymore. While I think every firm has some sort of a training program, it’s now much less formalized than it was 15 or 20 years ago. Under client pressures to control rates, junior associates were also not getting the same early experience of working on interesting trademark portfolios, which is where you really learn by doing.

That led me to the idea for a more practical education format. I just needed to figure out the technology to bring it to the market, which I ultimately did in 2020 in the form of Trademarkabilities.

How is Trademarkabilities different from other educational programs out there?

My approach is a very practical one, and it’s quite different from that of national CLE providers, for example. The practical approach really resonates with people, because it’s not just a lecture on what a case means or the latest update to some statute. It’s actionable information about what an IP attorney can do with a piece of information and how it impacts their practice.

The real idea of Trademarkabilities is to give anyone who has interest in trademark law – whether they’re brand new attorneys or someone who’s more experienced and who wants to add trademark prosecution to their practice – the opportunity to learn the practical side of practicing before the USPTO. We start with the rules, but we go beyond that with practical strategies and tips to help the practitioner understand the concepts more fully. We also provide screen shots of USPTO forms and client communication templates.

Some of our attorneys have described the program as “a trademark practice in a box.” I want to make it as easy as possible for the attorney to set up a trademark practice if they’re new to practicing trademark law. To date, I’ve educated over 3,000 attorneys on various trademark and IP issues.

Who can benefit from Trademarkabilities?

Anyone who is dedicated to trademark law. We’ve had everyone from solo and small firm attorneys to in-house attorneys to attorneys at IP boutiques or larger firms. In the firm setting, junior attorneys want to do well and advance their careers. No matter how great their mentors are, though, no partner is going to have time to devote the hours and the level of detail that we give in the course.

We go into great depth and cover the entire trademark prosecution process from beginning to end. It’s meant to be comprehensive and something attorneys can grow with, regardless of their experience level when they start.

Why is trademark education so important?

Trademarks are an incredibly important business asset. If you look at the filings at the USPTO, trademarks have been growing in popularity over the last five years, largely because trademarks are becoming more accessible to businesses of all sizes. There was also a huge increase in trademark filings during the pandemic, because people were forced to pivot and form new businesses. All this means that more and more clients are starting to ask their attorneys about trademark issues.

Any attorney barred in any state can practice trademark law in the U.S., but most lack the training to do it, so they end up referring this business elsewhere. And the fact that the U.S., unlike most other countries, doesn’t have a competency test (like the patent bar, for instance) for trademark practitioners makes it more difficult for practitioners to learn the area well. Part of the reason for setting up Trademarkabilities was to make sure that people really understand how nuanced this area is and to ensure they can represent their clients confidently.

How does the course work?

Our signature course is a 10.5-hour course. We also have an introductory course if people just want to dip their toe in. Trademarkabilities is a video-on-demand course, which means you can take as much time as necessary to complete the course on your schedule. The videos are viewed on our learning platform, which can be accessed as often as you want, via your computer or mobile devices. You also get a complete workbook of the slides that go with the course, as well as templates that can be downloaded and customized to suit your firm’s needs.

We also offer additional resources for anyone who signs on to the signature course, including monthly, live Q&A sessions that I run and a closed Facebook group where people enrolled in the course can post questions and get feedback. The signature course is CLE-certified in the state of Illinois, which says something about the level of the substance of the course.

What should people know about pricing?

The course is $2495, which I think is an exceptional value for all of the tools and resources that you’re given. There’s no other course out there of this length that goes anywhere near as in-depth as our course. Our pricing is comparable to what you’d pay for one- or two-day sessions from other providers that only give you an overview of the topic.

We offer discount pricing for additional enrollees from the same firm. I welcome any firm leaders who are interested in outsourcing their trademark training to please contact me. We do customized training for five or more people at the same firm and would be happy to speak with anyone about how we could be a resource to train junior trademark attorneys at their firm.

What can attorneys expect to get out of Trademarkabilities?

We want to help attorneys who are new to trademark law gain confidence in representing their clients and not have to turn this work away. We understand that, particularly when you’re on your own without that safety net of more experienced practitioners around you, it can be scary to learn a new area of law. At Trademarkabilities, we can be that safety net for you.

We help to build your skillset and, more importantly, confidence, so that you don’t ever have to turn away business that you want to take on. There’s no reason you can’t do trademark work, but you do need to learn the fundamentals first. We provide the fundamentals and much more.

Interested in learning more? Find all the comprehensive instruction you’ll need to optimize and grow your career in trademark law here!