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Pretexting is NOT a naughty word when it comes to Trademark InvestigationsPretexting

When it comes to trademark investigations the use of pretexting is NOT forbidden.  The word “pretexting” brings to mind the scandal involving HP where the board members utilized investigators to pretext in order to obtain phone records. In this case the word pretexting is defined as impersonating someone else to gain access to private or protected information, such as phone records or financial information.

According the FTC the Pretexting provision in the Gramm-Leach-Bliley under subtitle B is defined as “Fraudulent Access to Financial Information.

Pretexting is NOT a naughty word when it comes to Trademark Investigations

The use of pretexting in Trademark Investigations is quite different.

An experienced trademark investigator will work to obtain as much information via Internet searches, commercial database searches, website inspections (current & archived), corporate records, business filings, trademark filings, trade journals and other databases.  The goal of this research is to obtain as much background information on the industry and businesses being investigated, so that they can approach third party sources within a suitable context to confirm and or clarify several key pieces of information (Date of First, Non-Use, Abandonment, Last Date of Use in Commerce, Scope of Use, Channels of Trade as well as Goods/Services bearing the mark).

In an article published by  of Faegre Baker Daniels “In Trademark Investigations, “Pretexting” is Not a Naughty Word” the authors reference several cases where investigators posing as a typical customer were not found to be violating any sort of laws regarding contacting represented parties.  In one decision it is clear that if the investigator is not deceitful and does not push the boundaries of a typical client interaction that the information obtained is admissible and the actual contact with the subject business is not deemed unethical.  Further in many of these cases the subject business being contact was engaged in deceitful and unlawful acts which further weighed on the courts in their decisions.

When you engage with a trademark investigator it is crucial that you ask them questions about their methods and experience to insure that they will not create any situation that can be construed as unethical or illegal, which intern could get you and your client in trouble with the court.

Remember, pretexting is NOT a naughty word when it comes to Trademark Investigations.
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Criminal Background Checks for Student Athletes & Professional Athletes

Are criminal background checks being conducted on student athletes and professional athletes prior to the scholarship offer or big contract? Is it legal to conduct these types of searches? Are they conducted, but not spoken about?

NCAA sanctioned college sports drive a tremendous amount of revenue to the colleges and universities that participate. Turning a blind eye to criminal issues that their student athletes AKA revenue generators have been involved with might be a standard practice. At the professional level if you are going to sign someone to a huge contract shouldn’t you know a little bit about their past? Suspensions, fines and bans can impact your bottom line.

In a an article written by Education Week they published a report that lays out the results of criminal background checks run on more than 2,800 players on the pre-season rosters of the Sports Illustrated preseason top 25. “The findings were chilling: Seven percent of the players in the preseason Top 25, a total of 204 student-athletes, had been charged with or cited for a crime, and dozens of players had multiple arrests on their records”

The recent domestic violence case involving Ravens running back, Ray Rice, brought the domestic violence issues and criminal behavior of NFL athletes to the forefront when TMZ aired the security camera footage that showed Ray Rice knocking his wife unconscious and then dragging her away like a rag doll.

The bigger problem with professional athletes is that the behavior is widespread and there are several repeat offenders. There are no policies in place to really penalize the offenders. A report by NBC News states that there at least a dozen players besides Ray Rice with domestic violence arrests that are stilling playing on Sundays.

According to a report by CNN, “Domestic violence accounts for 85 of the 713 arrest of NFL players since 2000 in a database compiled by USA Today.”

The public relations nightmare that ensues when a college or professional athlete commits a crime or has a lapse in judgment is costly in many ways. Conducting thorough interviews, background checks and educating the athletes are all great ways to mitigate these types of horrific situations.

A comprehensive background-screening program would involve conducting interviews of family members, neighbors, friends, school administrators and coaches. Conducting criminal background checks and driving record searches prior to the offer, continuing to monitor criminal activity during the course of their scholarship or contract and then having the athletes re-checked every time they are negotiating a new contract or moving from one level to another. Additionally the institutions and professional franchises should set themselves up to receive notifications from the DMV for any violations, charges or accidents as a result of driving.

The challenge at the collegiate level is that many of the athletes may have committed crimes while they were minors and those criminal records are typically sealed and possibly destroyed once the athlete reaches the age of 18.

In an article posted by the United States Sports Academy they found that only two schools (Texas Christian University – TCU & Oklahoma) perform criminal background checks on their recruits.

By implementing a background screening policy at the college level the high school athletes might think twice before committing crimes that could effect their recruitment process and whether or not they receive scholarship offers. Additionally, a policy of screening recruits and professional athletes would substantially mitigate violent behavior on college campuses including, but not limited to assault, rape and sexual assault.

One study published by The Associated Press in 2011 found that “Studies have estimated that while male athletes only constitute a small percentage of the college community, they are responsible for nearly one-third of the sexual abuse crimes (Cullitan, 2010).