By Jeannette L. Knudsen

This issue of Advisor presents articles on widely ranging topics. Steve Dimengo discusses a tax refund opportunity for providers of electronic information services who purchase computers and related equipment. Lou Wagner’s article reports on two court opinions related to the use of trademarks, both one’s own and those of competitors, on the Web. Lawrence Friedlander outlines the challenges involved in gaining disability benefits – which are available to all regardless of socioeconomic status – and the importance of careful planning when making a claim. We hope that this information will benefit you in your personal life and in your business efforts. As always, we welcome the opportunity to discuss the application of these ideas to your own situation.

Jeannette L. Knudsen, Esq. is an associate and member of the Business Law, Intellectual Property and Real Estate & Construction Law Practice Groups.  She can be contacted at jknudsen@bdblaw.com or 330.643.0350.

Refund of Sales Tax on Equipment Used to Provide a Website
by Steven A. Dimengo, Esq.

A recent Ohio Supreme Court decision addressed the refund provision of R.C. 5739.071, which allows providers of electronic information services to receive a 25 percent refund of Ohio sales/use tax paid on purchases of computers and related equipment. (See Key Serv. Corp. v. Zaino (2002), 95 Ohio St. 3d 11.) A refund was available to Key even though its services were provided to members of an affiliated group.  

The Tax Commissioner argued that since such services occurring between members of an affiliated group are deemed nontaxable sales, a refund is not available. See R.C. 5739.01(X) defining “providing a service” with reference to “anything described in” R.C. 5739.01(B)(3) (which sets forth the taxable services). The Court found that electronic information services were so described, whether or not they were provided between members of an affiliated group. Moreover, Key was a provider of “electronic information services,” defined in R.C. § 5739.01(Y)(1)(c) as “providing access to computer equipment by means of telecommunications equipment for the purpose of either of the following:  (i) examining or acquiring data stored in or accessible to the computer equipment; (ii) placing data into the computer equipment to be retrieved by designated recipients with access to the computer equipment.”

Extending the Court’s reasoning makes the partial exemption very broad. Exemption would appear to be available to equipment used in providing a Web site (including ancillary equipment and otherwise taxable services) if the primary purpose of the property is to provide electronic information services to business customers.

Steven Dimengo is a shareholder and member of the Taxation & Employee Benefits and Business Law Practice Groups.  He can be contacted at sdimengo@bdblaw.com or  330.258.6460.

Social Security Disability – Yes, It Could Benefit You
By Lawrence Friedlander, Esq.

Since all wage earners pay into Social Security on an annual basis, the use of disability benefits as a safety net is an entitlement and is of benefit to all regardless of social and economic status. Yet most people think of disability as something that only happens to “the other guy” – until they are confronted by the realities of an illness. Social Security requirements are complex, however, and legal assistance can be most effective in gaining the benefits due to a disabled person.

Too often the process of applying for disability benefits is done in a quick interview over the telephone or by simply jotting down information on an application form. Further, a treating physician may simply write a short letter saying, “In my opinion, the claimant is totally disabled” in support of the application for benefits. Such a response fails to meet the rigorous standards set by the Social Security Administration to warrant the finding of disability. Here, also, legal assistance can help the disabled person and his or her family present the correct information and gain the appropriate benefits.

To be eligible for Social Security disability, a person must have sufficient or equivalent earnings to be eligible, must have been disabled for at least one calendar year or expect to be disabled for that long, and must be so disabled as to be unable to engage in any substantial gainful employment for which the claimant has training, education or transferable skills.

Since the requirement for a finding of disability under Social Security requires either one year of total disability or the expectancy of one year of total disability, medical and legal planning is important. A determination of whether you have sufficient earnings to grant Social Security coverage, the amount of benefits that will be awarded should Social Security disability be granted, and a coordination of medical information should all be done prior to the filing for disability. Often when an employee is transferring from short-term disability insurance into a long-term disability insurance program, the company will require that the employee also file for Social Security disability. This not only ensures the employee of future medical payments under Medicare but also allows a set-off to the long-term disability benefits paid by the insurance company.

Many people do not realize that Social Security benefits can be approved for a closed period of disability as long as that closed period of disability exceeds one calendar year. For example, if a person had major surgery or a major illness that had flare-ups or relapses and the rehabilitation time lasted more than one calendar year, even if that person now is fit to go back to work and is indeed working, an application should be filed for the closed period of disability.

There are also instances where a person need not have any earnings record and would still be eligible for Social Security benefits. These include disabled widows, certain minor children, disabled widows or widowers, and disabled adult children.

Social Security disability is available even if the disabled person is collecting other disability insurance benefits or workers’ compensation benefits. It is also important to note that if the claimant has more than one health problem or disabling problem (even if no one problem is enough to disable the individual totally), all problems combined, including any pain or psychological problems derived from the conditions, can be considered as one for the purposes of determining Social Security disability.

For all these reasons, there is no simple answer to the question, “Should I file a Social Security disability claim?”  If you or someone in your family is disabled or has experienced a period of disability in the recent past, please feel free to contact me with any questions concerning eligibility for this important benefit.

Lawrence Friedlander is an of counsel attorney and member of the Workers’ Compensation and Litigation Practice Groups.  He can be contacted at lfriedlander@bdblaw.com or 216.615.7358.

Use Trademarks Wisely on the Web!
By Louis F. Wagner, Esq.

Many people are unaware that use of trademarks – both their own and those of their competitors – in Web sites is regulated by United States trademark laws. In particular, you can be in violation of the law if you use a competitor’s mark as a keyword more often than is reasonably necessary to identify the content or the services described. In a recently decided case in California, the use of “header tags” and “underline tags” around sentences containing the trade name of a competitor was deemed to be a trademark infringement. The court issued a preliminary injunction ordering the competitor to refrain from using the trade name more often than reasonably necessary.

The competitor had violated the law by using keywords in four ways: 

“creating keyword density” using the trade name of a competitor;

creating “header tags” and “underline tags” around sentences using the trade name of the competitor; 

by using the competitor’s trade name as a keyword; and

by using “hot links” to Web sites with information about the competitor.

A case involving Terri Welles, a Playboy “Playmate of the Year,” led to an opposite result. The case concerned her use of the Playboy trademark “Playmate of the Year” and stylized logo in her Web site.  Ms. Welles’s use of the Playboy trademarks was permitted in her Web site metatags because, the court explained, “[t]here was no other way that Ms. Welles can identify or describe herself or her services.”  The court noted that the trademark laws were “intended to protect those who criticize the holder of a well-known trademark as well as those, like Welles, whose notoriety is tied to it.”

Louis Wagner is a shareholder and member of the Intellectual Property Practice Group. He can be contacted at lwagner@bdblaw.com or 330.258.6453.

Robert W. Briggs (Buckingham Akron^SM) received an Honorary Alumni Award by the University of Akron on June 1, 2002. This award is the highest honor that can be bestowed on a graduate of the University by the Alumni Association . 

Nicholas T. George (Buckingham Akron^SM) was recognized as Citizen of the Day on April 11, 2002 and a special salute was performed on local radio stations. 

Robert C. Meyer (Buckingham Canton^SM) was recently appointed to the Board of Trustees and the Chairman of the Massillon Area Chamber of Commerce Legal Affairs Committee. He also became a Member of the Executive Committee of the Massillon Area Chamber of Commerce.

Joel H. Mirman (Buckingham Columbus^SM)  was elected to The Council of Delegates, one of the major governing bodies of the Ohio State Bar Association.  His term will begin on July 1, 2002 and conclude June 30, 2004. 

Linda Dupuis, Office Administrator at Buckingham Columbus^SM, is the Chair of the Legal Career Development Committee, which was created by the Columbus Bar Association and the Columbus Chapter of the Association of Legal Administrators.  Their goal is to develop a recruitment program to attract more people to the legal administrative profession. Ms. Dupuis has been instrumental in the development of course materials to assist in the recruitment process. 

Save the Date for these Upcoming Presentations:

On June 6, 2002, Donald B. Leach, Jr. (Buckingham Columbus^SM) will be presenting “Ohio Mechanics’ Lien Law: The How’s and Why’s of the Paperwork,” for the Builders Exchange of Central Ohio. Please refer to www.bx.org for registration information.

On June 7, 2002 at 7:30 p.m., George Weinstein (Buckingham Boca Raton^SM) will appear on "Wealth & Wisdom with Joyce Boyer & Michael Lee." The show will discuss "Insight into Preserving and Growing Your Asset." Please refer to your local listing for day and time.

On August 8, 2002, Frederick  M. Lombardi, (Buckingham Akron^SM),  Alan DiGirolamo, Robert A. Hager, and John P. Slagter (Buckingham Cleveland^SM) will be presenters at “Using Ohio Construction Laws To Your Advantage” sponsored by Lorman Education Services.  They will present on “Legal Aspects of Construction Contracts and Ohio Construction Law.”  Please reference www.lorman.com for additional information.

On  September 5, 2002, Donald B. Leach (Buckingham Columbus^SM) will also present “Design Build Construction: Contracting and Insurance Issues,” in Columbus, Ohio for Lorman Education Services.  Please reference www.lorman.com for registration and additional information.

Out and About – Recent Presentations:

Business Law Practice Group
Brent D. Rosenthal (Buckingham Columbus^SM) gave a presentation on limiting liability in corporate organizations for the 2002 Ohio Health Care Association Seminar on May 9, 2002 in Columbus, Ohio. 

Robert J. Newbold (Buckingham Canton^SM) gave a speech on "Overview of Franchise Law Regulations" to the Mt. Union College Franchise Section of Business Law Class.

David J. Lewis (Buckingham Akron^SM) spoke to the Akron Bar Association Real Property Committee on tax issues related to real estate matters, on May 14, 2002.

Employment Law Practice Group
James D. Kurek (Buckingham Akron^SM) discussed issues of workplace threats and violence at the 2002 Ohio Health Care Association Seminar held earlier this month in Columbus, Ohio.

Tod T. Morrow (Buckingham Canton^SM) presented at the 2002 Ohio Health Care Association Seminar held this month in Columbus, Ohio.  He spoke on Occupational Safety & Health Administration compliance issues.

Health Law Practice Group
Thomas W. Hess and Betsy J. Houchen (Buckingham Columbus^SM) were presenters at the 2002 Ohio Health Care Association Seminar and they discussed the role of the nursing home quality assurance committee.

Marian Pearlman Nease (Buckingham Boca Raton^SM) spoke on Florida liability and tort reform issues at the legal update session of the Spring Legislative Workshop sponsored by the American Association of Homes and Services for the Aging in Washington, D.C. on April 9, 2002 and on May 23, 2002 at the Florida Retirement Housing Council Annual Meeting in Tampa, Florida.

Eric M. Simon (Buckingham Cleveland^SM) gave a presentation on “Nursing Home Leases” at the 2002 Ohio Health Care Association Seminar in Columbus, Ohio this month. 

Litigation Practice Group
Joel H. Mirman (Buckingham Columbus^SM) presented “The Electronic Frontier: Security Issues Involved in Electronic Communications” at the Association of Ohio Philanthropic Homes, Housing and Services for the Aging Spring Retreat held at the Cherry Valley Lodge in Newark, Ohio on May 15, 2002.

Real Estate & Construction Law Practice Group
Robert A. Hager and John P. Slagter (Buckingham Cleveland^SM) presented “Legal Aspects of Construction Contracts” to the Associated Builders and Contractors in March.

Trusts & Estates Law Practice Group
Phylip J. Divine (Buckingham Akron^SM) gave a presentation on “Estate Planning Basics” on April 20, 2002 at the Fairlawn-West United Church of Christ. 

If you are interested in obtaining information on upcoming seminars or would be interested in having speakers from Buckingham, Doolittle & Burroughs make a presentation to your organization, please contact: Cheryl Warren, Director of Client Relations and Marketing at cwarren@bdblaw.com or 800.686.2825 ext. 546.


At BDB we are always improving our processes so that we operate efficiently and effectively. Please let us know how you like our new broadcast format. E-mail: bdb@bdblaw.com Phone: 330.258.6473 Fax: 330.252.5473. 
Thank you.