Why it’s time we talk about “That Time of the Month”

By Danielle Bernstein   Don’t worry about paying sales tax the next time you go to CVS to pick up a prescription, buy some condoms, or stock up on sunscreen. These items are exempt from sales tax because they are considered medical necessities that are “intended for use, internally or externally, in the diagnosis, cure, mitigation, treatment, or prevention of illnesses or diseases in human beings.” But go to CVS to pick up a package of tampons? Time to pay up. Under the current tax code tampons and pads are not medical necessities, instead they are classified as items “used to maintain cleanliness.” This designation places tampons and pads in the same category as cosmetics like lipstick and shampoo. Interestingly, dandruff shampoo made the cut for a “necessity” and is not taxed. Any woman who has ever had to ask a stranger for an emergency tampon in the bathroom (and most of us have) knows this designation is incorrect. Tampons and pads are not luxury items. As one woman put it, “[They are] one of the most important things for a woman to have available.” And insofar as there is a spectrum of “necessity,” tampons are certainly more necessary that treating [read more]

523(a)(8): The Elusive Student Loan Debt Discharge

By Sam Gamer   This past summer, the total student loan debt owed by Americans crested up to $1.2 trillion. For those staring down their own slices of that staggering sum, the options available to pay it off can seem daunting. A lucky few of these former students might be able to find high-paying jobs that enable them to easily handle their debts. For most, however, the path likely includes some combination of sacrifice, payment plans, multiple jobs, and refinancing. And for those who have an appetite for uphill battles, an additional tool might make sense: bankruptcy. The discharge of one’s debts is a hallmark of the consumer bankruptcy system. Whether filing for chapter 7 or chapter 13, the debtor emerges from the process with his debts forgiven. Well, most of them. Contained within section 523 of the federal bankruptcy code is a list of certain debts that, even in a bankruptcy context, a borrower can’t escape from. Student loans are on this forbidden list. Specifically, the law says that, unless the former student can prove that keeping the loans will impose an “undue hardship” on him or her, the loans will not be discharged even after a bankruptcy filing. [read more]

The Converse Shoe Case: Why We Should “Chuck” the Aesthetic Functionality Doctrine

By Max Scharf Converse is currently in the midst of litigation which seems to completely depend on the status of the aesthetic functionality doctrine. When consumers think of Converse, they often think of their Converse All Star sneakers (as seen below), also known as “Chuck Taylors.” In October 2014, Converse filed suit against Wal-Mart (and dozens of other companies) claiming these companies were selling knock-off Chuck Taylors. For the sake of brevity, this post will mainly focus on Converse’s claims against Wal-Mart. Converse is claiming trade dress infringement on the grounds that Wal-Mart’s “Stinson Oxford” shoes are likely to cause consumer confusion.     Converse claims Wal-Mart is unlawfully reproducing its “midsole trademark” which consists of a particular design, including stripes, a toe cap, and a toe bumper. Indeed, in 2013, Converse registered this design with the Patent and Trademark Office.   Background on Trade Dress Protection In Two Pesos, the Supreme Court held that the Lanham Act protects trade dress, which includes the “shape, color or color combinations, texture, [and] graphics” of a product. Trade dress, in the form of a product design, can only be registered and protected, under the Lanham Act, if it acquires secondary meaning. Secondary [read more]

Is Daily Fantasy Sports Gambling?

In August of 2015, Forbes published an article highlighting the fast-growing daily fantasy sports (DFS) industry. The rise of fantasy sports and most specifically fantasy football has been truly remarkable. In recent years, fantasy football has absolutely exploded with over 30 million Americans playing fantasy football annually. Fueled by over one billion dollars in venture capital and powered by the internet, fantasy football has been rapidly evolving. It is this evolution that has, in many ways, shaped the controversy surrounding daily fantasy sports sites. Traditional Fantasy Sports: Traditional fantasy football gives players a chance to serve as team owners/managers and compete in a “league” of friends. The fantasy season begins with a “draft” process where each participant is permitted to select players for their team. In the standard league, each “owner” is required to fill a team roster. Each week of the football season, owners are matched up against an opposing owner. Points are then allocated based on various athletic achievements made by the players on their team. The winner of the weekly matchup is the team with the most points. The challenges continue until a winner is declared at the end of the football season. In 2006, Congress passed [read more]

How About Them Apples?

The USDA approval means these apples can be grown in the United States and will likely further invoke more GMO debate; the question of what could be done or should be done requires a bit of probing into the US regulatory system. [read more]
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