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Since the 2013 Hospitality Law Conference, we have received many requests for the Garvey Schubert Barer presentations. Well, here they are. Ruth and I are happy to further explain them and other details on the trending topics. Please give us a call or email. It was a fun and educational conference so it is nice to look back at these slides!

Deal or No Deal?

Daily deal (or “flash sale” sites) like Groupon, LivingSocial, and Rue La La, are quite popular with both hoteliers and their potential guests, providing, as they often do, slashed rates and an easy method for getting heads in beds during times the hoteliers want them there the most. Unfortunately, these channels may not provide the benefits they seem to, and they pose a number of legal and practical risks that may make them even less attractive.

Protect Your Good Name: Keyword Advertising and Trademark License

Published in Hospitality Upgrade, March 2013.

The Internet can be a hard, hard place for brand owners. Yet failing to engage potential guests online across a variety of platforms is no longer a viable option for the majority of hospitality industry participants. It is crucial that brand owners exercise control over their marks whenever possible. This article focuses on the legal use of keyword advertising, and provides some tips about how to negotiate trademark licenses in online distribution and marketing agreements...To read the full article click here.

Our latest post comes from Malcolm Seymour, a member of our New York office who specializes in commercial litigation and regulatory enforcement actions. His post discusses the ins and outs of Dram shop laws, and how they vary from state to state. -Greg

"A guy walks into a bar and orders a drink”: these words usually foreshadow some benign if tasteless joke. But these same words are increasingly found prefacing legal complaints based on laws known as dram shop statutes. And for businesses that sell or serve alcohol, these lawsuits are no laughing matter.

Under dram shop laws, businesses that sell alcohol can face civil liability for injuries that their intoxicated patrons inflict on third parties – even after those patrons have left their premises, and (in some states) even when the injury caused is intentional. Despite the anachronistic name, more states enact dram shop laws every decade, under political pressure from groups like M.A.D.D. These laws vary significantly from state to state, and their severity in certain jurisdictions can come as an unwelcome surprise. Any hotel, restaurant or bar that sells or serves alcohol, especially one with operations in multiple states, would do well to familiarize itself with these laws and their jurisdictional differences.

Take New York City – a nightlife capital and global destination for travelers – which happens to fall under the reach of one of the nation’s harshest dram shop laws. New York State’s Dram Shop Act allows private plaintiffs injured by intoxicated individuals to sue anyone who may have “unlawfully” sold those individuals alcohol. This would not be so vexing if New York used a clear standard to define what sales are considered unlawful. Legally prohibited sales include sales to minors, habitual drunkards and – most problematically for those on the receiving end of a dram shop complaint – anyone who is “visibly intoxicated.”

Digital Signage Part III:  Potential Legal Issues

The proverb asserting that the more things change, the more they stay the same, always seems true when one thinks about potential legal issues from new technologies.

Digital signs are still signs, and placement of signs – especially billboards – has long been an issue receiving the attention of local governments. If those signs are emitting light and displaying motion, there may be even greater concern about their placement and their potential nuisance value. The Federal Highway Administration allowed digital billboards in 2007, concluding that they did not pose a danger to drivers. However, the FHWA has been studying the research and working on a report, which is anticipated this year, focusing on whether or not electronic billboards can be a dangerous distraction for drivers because they are so much more dramatic than conventional billboards. Furthermore, as digital signs proliferate, they will likely be scrutinized more closely under federal, state and local historic preservation and environmental impact laws.

Digital Signage Part II:  Some Examples

The size, weight, quality, cost and durability of video monitors limited their use for quite some time. However, the existence of large, light-weight, high-resolution, low cost monitors that can endure considerable abuse has been instrumental in the explosive growth of digital signs.

Other factors have fueled the growth as well.

Quick Service Restaurants (also known as fast food) are under increasing pressure to provide nutritional information about the food they sell.  Regulations are in place that require posting of this factual consumer information. It is expensive and time-consuming to print, revise and reprint this information on paper. If a QSR establishment cannot change its menu until it is able to post current nutritional information, then that menu may not change very often or in any substantial ways. Digital menu boards can be controlled from a centralized location, and can be updated very quickly, if, for example, the menu changes, or if the food content or portion size of a dish is changed. At the same time, the sign can be used to quickly promote an entree, or make some last minute special offer, all designed to promote sales.

The rash of NLRB guidance and new protections for employee social media activity discussed in our previous posts may make employers shy about taking corrective action based on an employee’s social media postings. While employers should always be careful in these situations, however, the mere fact that something is posted online does not make it “protected.” Recent examples in the news are a great reminder that where a posting is vulgar, offensive, or airs a petty grievance without implicating employees’ rights to discuss the terms and conditions of employment, the employer can and in many cases should discipline the employee. Where a posting is less offensive, however, the employer should tread carefully, as unpopular personnel decisions can also draw serious scrutiny.

Digital Signage Part 1:  What is a Digital Sign?

According to the humorist Robert Benchley “There are two kinds of people in the world: those who divide the world into two kinds of people, and those who don’t.” Borrowing from Mr. Benchley, there are two kinds of people in the world – those who know about digital signage and those who don’t. Today, the latter is probably the larger group, but the former is a fast growing group. Because digital signs have already started to impact every organization and location where people gather, there is good reason to join the group of those who know about digital signage.

What comes to mind in response to the word “sign”? Something along the side of a road that conveys meaningful information?  Something you look for along that road when you are low on gas? Something to let you know that you have arrived at your destination without running out of gas? The word “open” in glowing neon light at that destination? 

Many signs have remained unchanged for decades. However, because of a variety of technological advances, such as digital signal transmission, high-speed high-volume broadband, flat-screen displays, QR codes and near field communications (transmitting information wirelessly over very short distances such as by touching smartphones) the concept of a sign has changed dramatically over the past decade. What once was static can now be dynamic and can take many very different forms.

A common term for modern signs is “digital sign” or “digital signage.” There is no single recognized definition of this term right now. However, a digital sign is something you know when you see it because it is different from what you are used to seeing. The Digital Place-based Advertising Association has adopted the following definition:  “a display device that has the ability to display dynamic advertising and replaced static billboards and posters.” Note the use of the term “display device” to suggest some piece of hardware. Note the use of the term “dynamic” contrasted with “static”. Given the highly specialized mission of this particular association, note also the reference to advertising; however, there is no reason why a digital sign cannot convey non-advertising messages as well.

Several clients have lately been asking about notices they've received that look like this. If they come from the Eastern District court in New York, they’re legitimate, and if you are a merchant who accepted Visa or MasterCard or both between January 1, 2004 and November 28, 2012, you are a probably a member of the class and should have received one too. If you didn't, the lawsuit and proposed settlement are discussed in detail here. Take a look; the settlement could affect your legal rights. You have until May 28, 2013 to exclude yourself from the settlement (opt-out) or object to its terms; the final hearing on the proposed settlement will be September 12, 2013. Assuming the court approves the settlement, with or without changes that may occur as the result of objections, claim forms will be issued after that date to class members and a claim deadline will be set.

The Hospitality Group hosted events in Seattle and Portland March 11 and 12, to discuss the comeback of hotel and hospitality-related development. More than 140 attendees ranging from construction industry representatives to flag representatives and investment bankers participated in the discussions. One panel about Construction and Transactional Development highlighted the return of bricks and mortar to the hospitality conversation.

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About the Editor

Greg Duff founded and chairs Foster Garvey’s national Hospitality, Travel & Tourism group. His practice largely focuses on operations-oriented matters faced by hospitality industry members, including sales and marketing, distribution and e-commerce, procurement and technology. Greg also serves as counsel and legal advisor to many of the hospitality industry’s associations and trade groups, including AH&LA, HFTP and HSMAI.

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