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Beware of Trademark Scams Disguised as Legal Assistance

05 Jun 2025 00:00:00 -0800

In an era where branding can make or break a business, protecting your intellectual property—especially your trademark—has never been more essential. But as more companies take steps to secure their brand identity, scammers have found ways to exploit these efforts. A particularly troubling tactic has surfaced: fraudulent “trademark agencies” claiming to offer legal help while attempting to con businesses out of money and sensitive information.

These schemes usually begin with an email or letter warning that someone else is attempting to register your trademark—or something deceptively similar. The scammers position themselves as intermediaries representing a third party and claim that, out of professional courtesy, they are notifying you so you have the chance to “secure your rights.” In reality, they are neither acting out of courtesy nor providing legitimate legal services.

A Growing Concern Among Business Owners

In recent months, multiple clients and colleagues have reported receiving these deceptive messages. Typically, the communications threaten that if the recipient does not immediately act to register their trademark, another party—usually unnamed—will secure the rights instead. The scammers offer to handle the filing for a fee, using fear and urgency to pressure the recipient into a hasty decision.

Further investigation often reveals that the agencies are registered to non-existent or residential addresses in cities like San Francisco or Los Angeles. The supposed attorneys involved may be real individuals who are licensed—just not connected in any way to the agency in question. In some cases, scammers go so far as to impersonate real lawyers or law firms, using cloned websites and email addresses that closely resemble those of legitimate practitioners.

The Anatomy of the Scam

These fraudulent solicitations tend to follow a familiar script:

Claim of Conflict: The sender says they represent a client attempting to register a mark identical or similar to yours.
False Professional Courtesy: They claim to be notifying you to give you a “chance” to act before it's too late.
Offer of Urgent Help: They offer to help you file your mark immediately, usually at a high cost and with aggressive deadlines.

This approach mirrors previous scams involving domain name registrations, where businesses were told that a competitor was trying to claim their web address in another country. The emotional manipulation is the same—create urgency, spark fear, and demand immediate action.

Warning Signs to Watch For

Several telltale signs can help you identify these messages as fraudulent:

Urgent Deadlines: Messages often demand a response within 24 hours or less. The goal is to prevent you from taking the time to consult a legitimate attorney.
Lack of Verifiable Information: Scammers rarely identify the supposed third-party applicant or provide any documentation you can verify through official trademark databases.
Poor Writing: Messages are frequently riddled with grammatical errors and inconsistent terminology, suggesting the sender is not a trained legal professional.
False or Misleading Identities: Some scams use the names of real attorneys or firms—sometimes even cloning websites—to bolster credibility.

Legal Ethics Say Otherwise

One of the strongest indicators that something is wrong lies in the unethical nature of the communication. Legitimate attorneys are bound by strict ethical rules, including client confidentiality. An actual lawyer would never disclose a client’s intent to register a mark to a potential competitor—doing so would violate their duty of loyalty and confidentiality. If someone claiming to be an attorney offers to switch sides and help you instead, that conduct alone is a massive red flag.

What Should You Do?

If you receive such a message, the best course of action is simple: do not respond. Instead, contact a reputable trademark attorney or intellectual property professional. They can verify whether there is an actual threat and advise you on the appropriate next steps.

In many cases, a quick search reveals no competing trademark application and no active infringement. Often, the correct response is simply to ignore the message.

But if the threat is legitimate, your attorney can guide you through real options, such as:

Filing your own trademark application to secure your rights;
Sending a cease and desist letter;
Setting up a trademark watch service;
Or choosing to take no action if no actual risk is present.

Stay Smart, Stay Protected

Your trademark is more than a logo or name—it’s the foundation of your brand and reputation. While it’s essential to protect it, it’s equally important not to fall prey to fear-based tactics that lead to costly mistakes.

The bottom line: Be skeptical of unsolicited trademark warnings. Be wary of anyone demanding immediate action. And above all, seek out trusted legal guidance before taking any steps.

The right move isn’t always the fastest—it’s the most informed one.

Robert A. Mullins is a business litigator based in Turner Padget’s Augusta, Georgia office where he focuses his practice on trademark and copyright infringement as well as intellectual property, corporate, and environmental law. Robert provides clients with both litigation support and proactive business counseling. If you have questions or need guidance on protecting your business, please reach out to Robert at rmullins@turnerpadget.com to schedule a consultation.

A $750,000 Scare: How One LinkedIn Post Became a Copyright Minefield

15 May 2025 00:00:00 -0800

By Robert A. Mullins

In an age where content is shared freely and frequently online, a recent legal case I defended serves as a stark reminder of the risks of reposting copyrighted material, even with the best intentions. A physician in South Carolina found herself facing a $750,000 federal copyright lawsuit after posting five photographs from Pinterest to her personal LinkedIn page, unknowingly triggering a legal battle with a professional photographer.

The images were part of a photographer’s series of popular images, featuring older adults gazing into mirrors and seeing their younger selves. Accompanied by her heartfelt caption reminding fellow physicians that their senior patients were once young,the post seemed benign. However, it caught the attention of the photographer’s legal representatives, which demanded the physician pay a $150,000 “licensing fee” within 21 days. Even after the post was promptly removed, the photographer’s attorney filed a federal lawsuit alleging willful copyright infringement and seeking up to $750,000 in statutory damages.

The Legal Framework

Under U.S. copyright law, a plaintiff must show ownership of a valid copyright and unauthorized copying of original elements to prove infringement. 17 U.S.C. § 501. If successful, the plaintiff may claim actual damages or statutory damages, which can range from $750 to $30,000 per work infringed, and rises to $150,000 per infringed work for willful violations. 17 U.S.C. § 504.

The Defense: Fair Use

Our defense was to invoke the “fair use” defense under 17 U.S.C. § 107, arguing that the post qualified as non-commercial commentary. We highlighted the educational and expressive purpose of the post, asserting it added new meaning and context to the original work, hallmarks of a transformative use.

The defense also evaluated the four fair use factors:

Purpose and Character: Non-commercial, transformative commentary, not used for business promotion.
Nature of the Work: Creative but previously published, a fact that leans toward fair use.
Amount Used: Entire photos were shown, but full reproduction is often necessary in visual commentary.
Market Effect: No demonstrable harm to the market or licensing potential of the original images.

The defense further called attention to the plaintiff’s litigation history, describing the case as part of a broader “copyright trolling” scheme. Courts are increasingly critical of "copyright trolling," especially in cases involving copycat plaintiffs—individuals or entities who repeatedly file lawsuits over alleged copyright infringement, often with the primary intent of extracting settlements rather than genuinely protecting creative work. We noted that the photographer (the plaintiff) had filed over 100 similar lawsuits, many discovered through automated image-detection bots, suggesting the motive may be financial gain rather than protection of artistic rights. Use of the legal system not to vindicate intellectual property rights, but as a tool for coercive settlement is not seen in a positive light.

Resolution and Takeaways

I was able to quickly file a motion to dismiss, and relatively quickly settle this matter out of court. This outcome underscores the importance of understanding copyright law in the digital age. Even well-meaning, non-commercial uses of online content can lead to severe legal consequences.

The case serves as a cautionary tale: always verify the rights associated with images before posting them online. The absence of a watermark or copyright notice does not mean an image is free to use. As this incident reveals, the cost of not knowing can be steep.

The bottom line is that if you’re not sure whether you can share someone else’s photo or content—don’t, or at least get permission first. If you find yourself facing a similar issue, consulting with a copyright attorney may help you understand your options and help protect your interests.

RICO Liability Expanded: What Medical Marijuana, Inc. v. Horn can mean for employers and CBD Providers

14 May 2025 00:00:00 -0800

The United States Supreme Court recently issued an important decision in Medical Marijuana, Inc. v. Horn, significantly expanding the potential liability of CBD and marijuana providers under the federal Racketeer Influenced and Corrupt Organizations Act (RICO). This ruling has significant implications for employers, especially in states like South Carolina, where marijuana remains illegal for most purposes.

Douglas Horn, a commercial truck driver, was terminated after testing positive for THC following his use of "Dixie X," a CBD product marketed as THC-free by Medical Marijuana, Inc. Following his termination, Horn sued Medical Marijuana, Inc., under civil RICO alleging that false advertising and misrepresentation led to the loss of his job. The District Court initially dismissed the claim, reasoning that RICO does not allow recovery for business or property losses that stem from a personal injury. The Second Circuit reversed, and the Supreme Court affirmed, holding that civil RICO does not categorically bar recovery for business or property losses simply because they derive from a personal injury.

The Supreme Court clarified that a plaintiff may seek treble damages under civil RICO for business or property losses, even if those losses result from a personal injury. For example, if an employee loses their job due to a positive drug test after using a mislabeled CBD product, that job loss is a business injury and is actionable under RICO. The Court rejected the argument that any business or property loss flowing from a personal injury is automatically excluded from RICO’s reach. Instead, the focus is on the nature of the harm, not its cause.

This decision potentially opens the door for consumers to bring RICO claims against CBD and marijuana companies for economic losses tied to alleged misrepresentations, even if those losses are indirectly related to personal injuries.

The legality surrounding marijuana and CBD in South Carolina remains restrictive. Despite recreational marijuana use being illegal, the sale and possession of hemp-derived CBD products with less than 0.3% THC are legal, provided they comply with federal and state regulations. Employers in South Carolina are not required to accommodate marijuana use, and positive drug tests can be grounds for termination, even if the product was purchased legally elsewhere or was marketed as THC-free.

Employers should be mindful that employees terminated after positive drug tests may now have a federal cause of action against CBD or marijuana providers if the product was mislabeled or falsely advertised as THC-free. While South Carolina, an at-will employment state, supports strict workplace drug policies, employers may find themselves entangled in litigation as witnesses or third parties if employees pursue RICO claims against product manufacturers.

CBD and marijuana providers, should ensure that product representations, especially regarding THC content, are accurate and substantiated. Mislabeling can now expose companies to significant liability, including treble damages under RICO. Producers should be attentive to quality control, testing, and marketing practices to minimize the risk of inadvertent THC contamination and misrepresentation.

Ethan Jedziniak is an associate attorney in the Firm’s Greenville, SC office and is part of the litigation practice area. Ethan focuses his practice on insurance litigation, commercial and business disputes, contract interpretation, and zoning. He has successfully represented clients at various levels, including state, federal, and appellate courts, arbitration proceedings, and various boards and commissions.

Trademark Registration Basics

07 May 2025 00:00:00 -0800

A trademark is a critical asset for any business looking to establish brand identity and protect its goods or services in the marketplace. Understanding how trademarks work and how to register them is key to safeguarding your brand and maintaining legal rights to your name, logo, slogan, or other identifying elements.

What Is a Trademark or Service Mark?

A trademark is any word, phrase, symbol, design, or a combination thereof, that identifies and distinguishes the source of goods from one party from those of others. A service mark performs the same function but applies to services rather than physical products. Both serve to build consumer trust and brand recognition.

In this guide, the term “trademark” will refer to both trademarks and service marks unless otherwise noted.

Why Register a Trademark Federally?

Although simply using a mark in commerce can give you some common law rights, federal registration with the United States Patent and Trademark Office (USPTO) provides significant legal advantages. These include:

Nationwide protection for your mark and a presumption of ownership
Constructive notice to the public of your ownership
The ability to bring legal action in federal court
A basis for obtaining trademark registration in foreign countries
The ability to record your registration with U.S. Customs to stop the importation of counterfeit goods

These protections can be vital in preventing infringement and strengthening your position in case of legal disputes.

Trademark Symbols and Their Uses

™ (TM): Indicates a trademark that has not been federally registered.
? (SM): Used for service marks that are unregistered.
® (R): Can only be used once your trademark is officially registered with the USPTO.

Using ® before registration is improper and can carry legal penalties. Only use it after your mark is registered and only for the goods or services listed in the registration.

Filing a Trademark Application

You can file a trademark application either electronically via the USPTO’s online system or by mail using a paper form (note: electronic filing is cheaper and more efficient). The application must include:

The applicant’s name and address
A drawing or image of the mark
A list of goods or services the mark applies to
Filing fee (at least one class of goods/services)
Specimens showing how the mark is used in commerce (if applicable)

The filing fee for each class of goods or services included in your application is $350.00

Basis for Filing

There are three primary bases for filing a federal trademark application:

Use in Commerce: The mark is currently being used in connection with goods or services sold or transported across state lines. Acceptable use includes the mark appearing on packaging, labels, advertisements, or websites offering the goods/services.
Intent to Use: You plan to use the mark in the future. This allows you to reserve rights in the mark while preparing for launch. However, you must file proof of actual use before the registration is finalized and pay an additional fee (currently $100).
Foreign Basis: If the mark has been registered in another country, you may be able to use that registration to support a U.S. application under international agreements.

What is a Specimen?

A specimen is a real-world example of how your trademark is used in commerce. For goods, a specimen might be a photo of the product label or packaging. For services, it could be a brochure, website screenshot, or business card that clearly references the service being provided.

Specimens are required:

At the time of filing for use-based applications
After allowance for intent-to-use applications

The Review Process

Once filed, your application is assigned to a USPTO examining attorney who will:

Confirm the application meets legal requirements
Search for similar marks that could cause confusion
Raise objections or refusals if necessary

If there are issues, you’ll receive an Office Action outlining them. You must respond within six months, or your application will be considered abandoned. If the objections are not overcome, a final refusal may be issued.

Publication and Opposition

If your application is accepted, it is published in the Official Gazette, a public USPTO record. Third parties have 30 days to oppose the registration. If no opposition is filed (or it is unsuccessful), your mark will proceed to registration (if based on use) or you will receive a Notice of Allowance (if based on intent to use).

Maintaining Your Trademark Registration

A trademark registration can last indefinitely, but you must maintain it by filing required documents:

Between years 5–6: File a Section 8 Declaration of Continued Use
Optionally after 5 years: File a Section 15 Declaration to make the mark incontestable
Every 10 years: File a Section 8 and 9 (renewal) to keep the registration active

Failure to file these documents will result in cancellation or expiration of the registration.

Federal trademark registration is an essential step for any business seeking long-term brand protection. From the initial filing to long-term maintenance, understanding the process can help you safeguard your intellectual property and ensure your brand remains a valuable asset. Whether you're launching a new product or growing an established brand, securing your trademark rights is a smart legal investment.

Why You Need an Attorney to Register Your Trademark

17 Apr 2025 00:00:00 -0800

Securing a trademark is an important step in protecting your brand, but the process is more complex than it may initially appear. While it is possible to file a trademark application with the United States Patent and Trademark Office (USPTO) on your own, working with an experienced trademark attorney significantly increases your chances of success and long-term protection.

Here’s why hiring a trademark attorney is not only a smart decision—but often essential.

Navigating Athletes' Trademarks and NIL Rights in an Evolving Legal Landscape

09 Apr 2025 00:00:00 -0800

By Robert A. Mullins

The final approval hearing of a long-awaited settlement agreement in a case significantly impacting collegiate athlete compensation was held this week, just hours before the NCAA Men’s Basketball Championship in San Antonio. Although the settlement is still being tweaked, the case, House v. NCAA, changes the game for student-athletes who wish to benefit from using their name, image, and likeness (NIL) rights. While the judge indicated that some aspects of the proposed settlement may require clarification, the broader implications raise important questions about how athlete branding intersects with school-owned intellectual property.

The Intersection of NIL and Trademarks

Trademarks are an essential part of brand recognition, especially in sports. In professional sports, athletes and teams trademark their names, logos, and other distinctive identifiers to protect and capitalize on their brand value. Similarly, college athletes – especially in the wake of the House v. NCAA settlement – are gaining expanded opportunities to profit from their NIL. Collegiate student-athletes can engage in endorsement deals, sponsorships, and social media branding, turning their personas into marketable assets. Many are turning to trademark registration to reinforce and protect their personal brands.

The current legal landscape, shaped by House and its predecessor cases, creates new opportunities for athletes to protect their personal brands through trademark registration. College athletes – and, in some states, high school players – will file trademarks for their names, logos, or catchphrases, which can be licensed to third parties just as with professional athletes.

However, complexities remain around how schools and athletes navigate the overlap between institutional IP and personal brand-building, especially when athletes seek to leverage their association with school programs.

Trademark Protection Challenges

While House v. NCAA may reshape athlete compensation structures, it doesn’t address IP conflicts between an individual student-athlete and its team or even the NCAA. IP rights remain governed by trademark law and existing licensing frameworks and fail to address the use of institutional trademarks (such as a school’s logo or team colors, for example) by an individual student-athlete monetizing their NIL.

For example, a college athlete could trademark their name and likeness, but using these trademarks could lead to potential clashes with school-owned IP if they are heavily associated with a specific university or team.

As a result, the use of trademarks that athletes create – especially in connection with school logos, uniforms, or other institutional identifiers – may be subject to negotiation with the universities or conferences involved. Some universities have taken proactive steps to support athletes in protecting their IP, offering resources for trademark filings and legal guidance to help ensure that NIL activities comply with state laws and NCAA regulations.

Potential Challenges and Opportunities for Athletes

One key challenge that athletes may face is navigating the complexities of intellectual property law. Athletes may need legal guidance to ensure their personal trademarks are adequately protected and do not infringe on the trademarks of their university or team.

Moreover, athletes may become more entrepreneurial as they explore new revenue streams through trademark licensing. Athletes could license their personal trademarks to clothing companies, video games, or digital media platforms, monetizing their NIL and personal brands more effectively.

Conversely, as the trademark landscape becomes more crowded with personal athletes’ brands, there could be confusion or legal disputes over competing trademarks. Universities may also seek to claim a share of revenue from athlete-related trademarks if they feel the institution's trademark has played a significant role in an athlete’s branding. This dynamic could complicate the landscape further, requiring more transparent agreements and protections around trademark ownership.

Conclusion

The House v. NCAA settlement represents a watershed moment for college athletes in terms of the commercialization of their NIL. While it primarily addresses compensation for student-athletes, the NIL conversation raises important questions about trademark law as athletes gain greater control over their personal brands. As they begin monetizing their NIL, student-athletes will face opportunities and challenges in protecting and licensing their intellectual property. The interplay between athlete trademarks and institutional rights will become a key legal and commercial dynamic in college sports over the coming years.

NIL and the USPTO: Navigating Intellectual Property for Athletes

25 Mar 2025 00:00:00 -0800

By Robert Mullins

The rise of Name, Image, and Likeness (NIL) rights for athletes has opened up new revenue opportunities for college and professional athletes alike. As they capitalize on their personal brands, athletes are increasingly interacting with intellectual property law, particularly in relation to trademarks. The United States Patent and Trademark Office (USPTO) plays a key role in protecting the unique elements of an athlete's brand, such as their name, logo, or slogan, through trademarks. As athletes look to maximize their earnings and create long-term brand value, understanding the intersection between NIL and the USPTO is critical.

What is NIL?

Name, Image, and Likeness (NIL) refers to the rights that allow athletes to profit from their personal brand. This includes the ability to sign endorsement deals, promote products on social media, appear in advertisements, and even profit from personal appearances or autographs. Since the NCAA’s policy change in 2021, athletes have been able to capitalize on these opportunities while maintaining their eligibility to participate in collegiate sports.

How the USPTO Relates to NIL

The USPTO is the federal agency responsible for granting patents and registering trademarks in the U.S. Trademarks are a form of intellectual property that protect words, names, symbols, or other identifiers that distinguish the goods or services of one entity from another. For athletes, this can include trademarks on their names, logos, and slogans, which are all part of their personal brand.

For athletes seeking to capitalize on NIL, securing a trademark through the USPTO is a valuable step in protecting and commercializing their personal brand. By registering their name, nickname, or logo as a trademark, athletes gain exclusive rights to use those marks in connection with products and services they sell, and can prevent others from using their identity for commercial purposes without permission.

Examples of NIL and Trademarks in Action

Personal Brand Protection: A popular college football player might trademark their nickname, logo, or even a catchphrase they use on social media. This helps protect their identity and ensure that only they can use it for endorsements or branded products.

Merchandising: Many athletes use their name, image, or likeness on merchandise like clothing, posters, or shoes. To prevent others from producing and selling unauthorized merchandise, athletes can trademark their name or logo through the USPTO. This protects the financial interests of athletes by controlling the commercialization of their identity.

Social Media Branding: Athletes with large social media followings often have significant influence over their audiences. By trademarking their name or a specific brand identity (such as a logo or hashtag), athletes can enter into licensing agreements or partnerships with brands, while ensuring that their personal brand is protected and not exploited by others.

Some examples include:

LeBron James - "King James"

LeBron James, one of the most recognizable athletes in the world, has long used the moniker "King James" as part of his brand. The phrase, along with his logo and other identifiers, has been trademarked, allowing him to use it in marketing campaigns, product lines (like his Nike sneakers), and various endorsements. His brand is built not only on his athletic prowess but on the "King James" identity, and trademarking these terms ensures that he controls their commercial use.

Paige Bueckers – "Paige Buckets"

Paige Bueckers, a standout guard for the University of Connecticut (UConn) women’s basketball team, is another prominent NIL athlete. She filed for a trademark of the nickname “Paige Buckets,” which plays off her on-court skills. This trademark has helped her in securing multiple endorsement deals with major brands such as Gatorade and Nike. Bueckers' ability to protect and commercialize her nickname ensures that her personal brand, which resonates with fans and businesses alike, remains exclusive to her.

Challenges in NIL and Trademark Law

While NIL provides tremendous opportunities for athletes, there are challenges related to intellectual property. One of the key issues is the potential for confusion or dilution of an athlete’s brand if multiple athletes or unauthorized entities use similar marks. Additionally, athletes must be careful about using their trademarks in ways that don’t conflict with existing trademarks, such as logos or catchphrases already registered by other entities.

Another challenge lies in how athletes might navigate the complex relationship between college athletics and commercial enterprises. Some schools or universities might have their own trademarks or branding, which can complicate an athlete’s ability to freely use their own name or image in marketing materials without running afoul of institutional rules.

Conclusion

As NIL rights continue to transform college and professional athletics, athletes must consider their intellectual property strategy, including working with the USPTO to protect their name, image, and likeness. Trademark registration through the USPTO ensures that athletes can protect their brand, control how it is used, and generate revenue from licensing or merchandising deals. However, this also requires athletes to navigate the complexities of trademark law to avoid conflicts and ensure that their personal brand remains protected as they explore new commercial opportunities. Understanding the intersection of NIL and intellectual property is essential for athletes looking to maximize their earning potential in today’s evolving sports landscape.

Proposed Tort Reform Legislation in South Carolina

27 Feb 2025 00:00:00 -0800

By Adrian Peguese-Carter

South Carolina lawmakers are currently debating significant tort reform measures that could reshape liability, alcohol-related offenses, and insurance coverage across the state. The proposed legislation introduces amendments to multiple sections of the South Carolina Code of Laws.

Key Provisions of the Proposed Legislation

Fault Apportionment – The bill modifies how fault is allocated in legal cases, including exceptions for alcohol- or drug-related incidents. It also repeals certain sections related to joint liability.

Passenger Liability – Individuals who knowingly ride with an intoxicated driver or someone likely to become intoxicated will be barred from recovering damages in related claims.

Court and Department Actions – New requirements mandate the submission of complaints and judgments to the Department of Revenue, impacting permit revocations and suspensions.

Alcohol Server Training – Establishes mandatory training and certification for alcohol servers. Bars that violate training requirements may face a six-month license suspension for a first offense, with permanent revocation for a second offense.

Insurance and Liability Adjustments – Updates liquor liability insurance requirements and mandates specific coverage for certain damages.

Civil Actions – Introduces new provisions for filing lawsuits against unknown defendants and modifies uninsured motorist coverage regulations.

Penalties and Comparative Negligence – Expands penalties for legal violations and allows evidence of such violations to be used in negligence cases.

Damages and Bad Faith Actions – Establishes guidelines for awarding non-economic damages and actions for bad faith in liability cases.

Significant Revisions to Liability Laws

Under current law, a plaintiff may recover full damages from one defendant even if they were not the primary party at fault. The proposed reform limits full liability to defendants who are at least 50% at fault. The reform does not apply to cases involving willful, wanton, reckless, grossly negligent, or intentional misconduct, or cases involving alcohol or illegal drugs.

Key Amendments to Section 15-38-15

Fault Determination – In cases involving personal injury, wrongful death, property damage, or economic/noneconomic loss, courts will assign fault percentages to all parties, including nonparties. A defendant with less than 50% fault will only be liable for their assigned percentage of damages.

Jury Instructions – Juries must determine fault percentages for all parties, including nonparties, rule in favor of the defendant if the claimant is more than 50% at fault (or if the claimant is 50% or less at fault, calculate damages before applying fault percentages), assign damages to each defendant based on their percentage of fault. Special Verdict on Liability – The court will specify fault percentages for multiple defendants. The plaintiff’s fault does not reduce recoverable damages but contributes to the total fault calculation.

Multiple Defendants – Courts may treat multiple defendants as a single entity if they acted in concert or if one is vicariously liable for another.

Tortfeasor Defenses – Defendants may argue that nonparties contributed to the plaintiff’s damages.

Settlement Setoffs – If the claimant settles with any party before trial, the settlement amount will be deducted from the final damages, proportionate to the settling party’s fault percentage.

Changes to Insurance Coverage Requirements

Significant amendments are also proposed for Section 38-77-150(A) and 38-77-160, affecting automobile insurance carriers and punitive damages. In Section 38-77-160, new language clarifies that automobile insurers are not required to offer coverage for punitive or exemplary damages as part of underinsured motorist (UIM) coverage.

Legislative Status and Industry Impact

This bill was introduced in January 2025 and is currently under committee review in the South Carolina Senate. The proposed changes have sparked substantial debate among stakeholders, including citizens, insurance companies, and businesses serving alcohol.

Life Estate Deeds vs. Joint Deeds: Which One is Right for You?

04 Feb 2025 00:00:00 -0800

As an estate planning attorney in Greenville, South Carolina, I often help clients navigate the sometimes-confusing world of property transfers. Two popular options—life estate deeds and joint deeds—come with distinct benefits and challenges. Here’s what you need to know.

A life estate deed allows you to remain in control of your property during your lifetime while ensuring it passes directly to your chosen heir without the need for probate. Think of it as reserving a "front-row seat" to your home while pre-assigning future ownership, bypassing the need to transfer the property through the court system. This option is great for maintaining control and avoiding delays after death. It also provides your remainderman (chosen heir) a “stepped up basis” in the real property value, meaning it will minimize their capital gains taxes if they sell the real property in the future.

For example: let’s say you transfer the home to your remainderman while retaining a life estate. If your tax basis in the home is currently $250,000.00 and the home is worth $1,000,000.00 at your death, the tax basis will step up to that value. Note that the initial deed transfer to the remainderman is a gift that must be reported on a gift tax return. Currently, your lifetime tax-free gifting limit is $13.99 million. Finally, a life estate deed is a valuable tool for Medicaid planning as the real property cannot be subject to estate recovery since after your death, you (or your estate at that point) own no interest in it.

But beware—it’s not easily reversed. Once you’ve created a life estate deed, making changes or selling the real property requires the written consent of all parties named in the deed. Additionally, if you sell during your lifetime, you are only entitled to the value of your life estate and your remainderman is entitled to the remaining proceeds. You will not pay capital gains tax if you reside in the house. However, if your remainderman does not reside in the house, they may have to pay capital gains on their portion of the proceeds.

A joint tenant with rights of survivorship deed creates shared ownership where all named parties are equal owners of the real property during their lifetimes. That means each person on the deed shares in the property expenses - taxes, maintenance, and upkeep. When one owner passes, the property automatically transfers to the surviving owner without probate. This option works well for spouses or close family members who intend to share real property responsibilities during their lifetimes. However, it can complicate things if relationships sour or financial situations change.

To sell real property owned this way, all co-owners must consent in writing and are owed a portion of the proceeds equivalent to their interest in the property. If you sell during your lifetime, you will not pay capital gains tax if you reside in the house. However, if your loved one / co-owner does not reside in the house, they may have to pay capital gains on their portion of the proceeds. There is no “stepped-up basis” after a co-owner’s death, either, and owning a joint interest could negatively affect Medicaid qualification.

Choosing between these two tools often depends on your goals. Are you looking to streamline inheritance for your kids while staying in control of your home? A life estate deed might be your best fit. Want shared ownership with someone you trust? A joint deed could work better.

Ultimately, estate planning is about creating peace of mind. If you’re unsure which option suits your situation, I’m here to help you make a confident, informed decision. Let’s talk about preserving your legacy—and your peace of mind

Subscribers to South Carolina Lawyers Weekly can read Jessica’s column here.

Jessica Ferguson is an associate attorney in the Firm’s Greenville, SC office. She is part of the Estate Planning & Probate Practice Group. Jessica focuses her practice on estate planning and probate, helping individuals and families protect their assets, navigate estate administration, and resolve probate disputes.

The FTC's Non-Compete Ban: What Employers and Employees Need to Know

30 Jan 2025 00:00:00 -0800

By Robert Mullins

Since the Federal Trade Commission (FTC) announced its sweeping ban on non-compete agreements in May 2024, we’ve received many questions about what this means for businesses and employees alike. The ruling was set to take effect in September, invalidating most non-compete agreements nationwide. However, before it could be enforced, a federal court blocked the rule, leaving many wondering—what happens next?

The legal battle is far from over. The FTC has appealed the decision, and the debate over the future of non-compete agreements continues. While the rule never took effect, the FTC’s position signals a growing shift away from non-competes, arguing they unfairly limit job mobility and stifle competition.

So, what does this mean for employers and employees right now? In this post, we break down the current status of the FTC’s non-compete ban, what businesses should consider in light of this legal uncertainty, and what employees need to know about their rights moving forward.

Breaking Down the Current Status of the FTC's Non-Compete Ban

As of now, the FTC’s non-compete ban is on hold due to a preliminary injunction issued by a federal court in Ryan, LLC v. FTC in August 2024. The court ruled that the FTC overstepped its authority, deeming the ban as arbitrary and capricious, thus preventing it from taking effect. The Fifth Circuit Court of Appeals is set to hear the FTC's appeal, meaning the legal status of the ban is still uncertain. However, it’s clear that the ruling has sparked a wider conversation about the fairness of non-compete agreements and their impact on employees' rights and job mobility.

What Businesses Should Consider

Despite the FTC Ban being blocked, businesses should still rethink their use of non-compete agreements. The case has brought significant attention to the issue, and many state laws are already moving toward restricting non-competes, particularly for lower-level employees. Here's what businesses should consider:

Review Non-Compete Agreements: Businesses should reassess any non-compete clauses in employment contracts, especially for roles that may not qualify as "senior executives" under any future regulations.
Be Prepared for Potential Change: While the federal ban is on hold, changes at the state or federal level are still possible. It’s important to stay informed and ready to adapt to new regulations that could restrict non-compete use further.
Consider Alternatives: Employers may want to consider other means of protecting business interests, such as non-disclosure agreements (NDAs) or non-solicitation agreements, which can offer protection without severely limiting employees' job prospects.

What Employees Need to Know

For employees, the FTC's stance on non-competes signals a shift towards greater job mobility and fewer restrictions on changing jobs or starting businesses. Although the FTC Ban is temporarily blocked, here’s what employees should know:

Non-Competes May Be Challenged: The ruling has set the stage for future challenges to non-competes, especially if the FTC wins its appeal. If you’re subject to a non-compete agreement, it may become unenforceable if future rulings support the ban.
Know Your Rights: Employees should understand their rights regarding non-compete clauses in their employment contracts. Even if the federal ban does not go into effect, some state laws may offer protections or limit the enforceability of non-competes.
Opportunities for Job Mobility: If you're under a non-compete, the public debate and ongoing litigation may signal that employers’ use of these agreements will face greater scrutiny in the near future. Keep an eye on changes to both federal and state laws that could affect your ability to pursue new opportunities without legal concerns.

In summary, the FTC’s non-compete ban is still being litigated, and while its future remains uncertain, it’s important for both employers and employees to stay informed and prepared. Businesses may need to adapt their practices, and employees should know that the legal landscape surrounding non-competes is evolving. Stay tuned for future updates on this important legal issue.

Robert Mullins is Of Counsel in the Firm’s Augusta office where he serves clients throughout Georgia and the Southeast. He focuses his practice on business and commercial litigation as well as trademark, copyright, and patent litigation.