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Helen Trac

Posts by Helen Trac

US: Amazon wins tax dispute over cross-border IP transfer, but favorable tax treatment may no longer be available

Earlier this year in Amazon v. Commissioner, 148 T.C. No. 8 (March 23, 2017), the U.S. Tax Court issued a 207-page decision largely upholding Amazon’s tax treatment of an intellectual property transfer in 2005 and 2006 from the U.S. to a related European corporation. Contesting Amazon’s valuation of the transferred intangibles, the Internal Revenue Service

US: Proposed “Border Adjustment Tax” could kill foreign IP holding companies

With President Trump in the White House and a Republican majority in both the House and Senate, tax reform is once again high on the agenda.  Several weeks ago, President Trump promised “a tax reform bill that will reduce our trade deficits, increase American exports, and will generate revenue from Mexico that will pay for

U.S. – Considering the value of manufacturing trade secrets

These days, licensing between affiliate members of a multinational corporate family is prevalent. While reaching agreement between friendly parties on licensing terms may be easier than it normally would be between arms-length parties from an economic perspective, these transactions are likely to come under intense scrutiny from the relevant tax authorities worldwide. Understanding the value

California non-compete law trumps DTSA

Not long after my article discussing the interplay between the Defend Trade Secret Act (DTSA) injunction provisions and California non-competition law, a federal district court in the Northern District of California opined on this exact issue in Henry Schein, Inc. v. Cook, No. 16-CV-03166-JST, 2016 WL 3418537 (N.D. Cal. June 22, 2016). In Schein, the

China – When do cease-and-desist letters become unfair competition?

Owners of Chinese patents should take care not to be overly aggressive in asserting their patent rights, especially when dealing with a retailer, dealer, or importer. So long as the patent owner’s conduct falls within normal business practice, a patent owner should not be responsible for the alleged infringer’s economic harm, even if the patent

US: The DTSA, the Inevitable Disclosure Doctrine, and the Memory Rule

In the Defend Trade Secrets Act (DTSA), Congress generally rejected the “inevitable disclosure doctrine” prevalent in the trade secret law of many jurisdictions. Interestingly, the DTSA appears to leave open whether, and to what extent, the corollary “memory rule” will be applied in connection with a federal trade secret misappropriation claim. Under the inevitable disclosure

US: DTSA Injunctive relief against former employees limited by state law

Although the DTSA provides powerful new rights to trade secret owners, Congress balanced those new rights with the interests of employees by placing important limits on an employer’s ability to restrict employee mobility on trade secret grounds. The DTSA authorizes a federal court to grant an injunction to prevent actual or threatened misappropriation of trade

Tax dispute over Coca-Cola’s non-U.S. trademarks explained

The IRS and Coca-Cola are locked in a battle regarding the proper allocation of income between Coca-Cola and its foreign affiliates pursuant to trademark and trade secret licenses. However, the IRS seems to overlook a significant economic component of the license agreement by not recognizing the benefit Coca-Cola receives in the form of more valuable

US: New DTSA seizure remedy may be difficult to obtain

The new ex-parte seizure remedy created by the Defend Trade Secrets Act contains many hurdles that may prove highly difficult for trade secret owners to clear. Given that the DTSA does not preempt state trade secret law, trade secret owners may fare better petitioning state courts for an ex parte writs of possession or attachment

US: The Defend Trade Secrets Act – employer notice requirement

The Defend Trade Secrets Act (DTSA) incentivizes employers to update their employment contracts to give notice to employees of the protections offered by the act. In this context, “employees” include independent contractors and consultants as well as traditional common law employees.  The notice provisions kick in immediately, and will apply to confidentiality agreements that are