PRACTICESCorporate & Business Law
German Practice (Deutsch)
- Columbia University School of Law, J.D.
- University of Pennsylvania, B.A., cum laude
- New York
- U.S. Ct. of Appeals, 2nd Cir.
Ten Phillips Nizer Attorneys Recognized in the 2022 Edition of the Best Lawyers in America© including Lawyer of the Year, Helene M. Freeman08/19/2021
Best Lawyers® recognized Alan Behr, Jan L. Bernstein, Helene M. Freeman (Copyright Lawyer of the Year), Michael W. Galligan, Marc A. Landis, Donald P. Perry, Jeffrey Q. Smith, Evan J. Spelfogel, Martin B. Wasser and Elliot J. Wiener.
Phillips Nizer Intellectual Property Legal Alert - Fake News, Fake Invoices (March 2021)03/25/2021
You've heard of fake news, but what about fake invoices? Beware of bogus notices and invoices from imposters.
Recently, there has been a proliferation of companies that pose as the U.S. Patent & Trademark Office (USPTO) which try to fool trademark owners into paying to them amounts needed to maintain or renew their trademarks. These fraudsters mail trademark owners phony notices with names and typefaces so realistic that even sophisticated clients have been fooled.
U.S. News-Best Lawyers® (2021)11/05/2020
U.S. News - BestLawyers® recognized Phillips Nizer LLP as one of the nation's "Best Law Firms" for 2021. The annual rankings are presented in three tiers. A total of eleven areas of the firm's practice were recognized nationally and in the New York City metropolitan area. The rankings were announced on November 5, 2020.
Seventeen Phillips Nizer Attorneys are named to New York Metro Super Lawyers and Rising Stars10/28/2020
We are proud to congratulate our selected attorneys.
Phillips Nizer Attorneys Recognized in the 2021 Edition of the Best Lawyers in America©09/16/2020
Best Lawyers® recognized Alan Behr, Jan L. Bernstein, Helene M. Freeman, Michael W. Galligan, Marc A. Landis, Donald P. Perry, Jeffrey Q. Smith, Evan J. Spelfogel, Martin B. Wasser and Elliot J. Wiener.
Alan Behr is quoted in IP Manager: Booking.com SCOTUS victory raises survey status
This week’s US Supreme Court decision that Booking.com is not generic might lead to a larger use of consumer surveys.
Alan Behr, partner at law firm Phillips Nizer in New York City, points out that in the oral arguments the attorney for Booking.com said marks like the brand are relatively weak. Weak marks in the fashion industry aren’t a good idea, Behr says.
He notes that someone could theoretically register a domain name like menssocks.com and have a basis for protection. But he says this would still be a weak basis because someone else could register menssocks.info.
“Then you get into a lawsuit involving survey evidence and experts about whether that’s confusingly similar or not.”
Because of this, companies in fashion should be wary of picking a generic name, even if a marketing person really loves it, Behr says.
“When in doubt in fashion, go for a strong mark. It will pay itself back many times over in benefits. The fact that the court had concurring and dissenting opinions shows that when you have a mark that’s just over the line, like Booking.com, you’re going to have questions.”
Most brand owners would undoubtedly prefer not to have to argue in front of the Supreme Court to get a trademark registration in the first place. But those that do have to fight for their marks would be wise to take advantage of any evidence, including consumer surveys, that’s available to them.
Alan Behr is quoted in IP Watchdog:The Consumer is King: High Court Sides with Booking.com, Rejecting Per Se Test for Generic.Com Trademarks07/01/2020
“Interestingly, the owner of the mark BOOKING.COM admitted in oral argument before the court that it is a ‘weak mark,’ but the court found it to be a mark just the same. In my experience, marketers are rarely daunted by legal evaluations of the relative strength of marks. If a marketer loves a mark, whether it is as strong as titanium or as weak as tissue paper, he or she will usually go for it and let the law follow along as best it knows how. In this case, the law did just that.
What the case likely means is that there can be no automatic rejection of an application to register a mark that is simply a combination of a generic term such as ‘booking’ and a familiar top-level domain extension such as ‘.com.’ It does not, however, mean that any such combination would necessarily be registered as a trademark. That is, you cannot take any generic term and add “.com” to it and say you definitely have a registrable mark for any goods or services. Each case would still need to be examined on its own merits. The Supreme Court noted, for example, that ART.COM is already registered as a trademark but did not make a new rule that all such combinations are automatically registrable. What the case signifies is that, in the Internet age, top-level domain extensions, when added to generic terms might well create registrable marks. And that is news—an important clarification from the Supreme Court of how old law applies to the new tricks of electronic commerce.”
Alan Behr is quoted in WTR: “A victory for any brand owner that has invested to build a brand”: Booking.com and legal experts react to Supreme Court decision07/01/2020
“You cannot take any generic term and add ‘.com’ to it and say you definitely have a registrable mark”
What the case likely means is that there can be no automatic rejection of an application to register a mark that is simply a combination of a generic term such as ‘booking’ and a familiar TLD extension such as ‘.com’. It does not, however, mean that any such combination would necessarily be registered as a trademark. That is, you cannot take any generic term and add ‘.com’ to it and say you definitely have a registrable mark for any goods or services. Each case would still need to be examined on its own merits. The Supreme Court noted, for example, that ART.COM is already registered as a trademark but did not make a new rule that all such combinations are automatically registrable. What the case signifies is that, in the internet age, TLD extensions, when added to generic terms might well create registrable marks. And that is news – an important clarification from the Supreme Court of how old law applies to the new tricks of electronic commerce.
Intellectual Property Partner and Fashion Practice Chair, Alan Behr, is quoted in World Trademark Review; We can be allies but that's not enough: call for IP community to do more to help black-owned SMEs06/17/2020
The Black Lives Matter movement has placed racial injustice and police violence at the centre of social and political discussion. It has also led to calls for consumers to support local black-owned businesses. The latter provides an opportunity for the IP community to step up and help ensure that SMEs have easy access to IP advice and services – with one legal expert stating: “This is something we absolutely can do.”
Alan Behr is quoted by Law360: J.Crew Just First in Expected Flood of Retail Bankruptcies05/05/2020
Alan Behr, partner in the corporate and business law department at Phillips Nizer LLP and chairman of the firm's fashion practice, said many retailers have been laboring under highly leveraged balance sheets in recent years, and that an overnight elimination of their revenue streams spelled disaster for the most vulnerable companies, including J.Crew.
"When you have an up market, which we had for some time, you can squeeze by," Behr said of overleveraged companies. "But the moment things go bad, it's the companies that have poor cash positions that fall. And something bad happened in the market."
Alan Behr is quoted in MarketWatch article: J.Crew was in trouble even before COVID-19 due to a big debt burden and failure to keep up with trends05/05/2020
NKE, -1.38% are in far better shape and are expected to gain market share in the crisis.
Special Event - Our Fashion Practice held its annual Fashion Law Interest Group Meeting in Boston on May 21, 2019. Pictured (facing): Alan Behr, Chairman. Also in attendance: Monica McCabe, Chair, Intellectual Property Law Practice and Candace Arrington, Intellectual Property Specialist.05/30/2019
The Fashion Law Interest Group meeting coincides with the International Trademark Association (INTA) annual conference. It is not, however, associated with or sponsored by INTA. The Group's attendees include outside counsel representing fashion designers, luxury apparel and accessories companies and retailers, in-house counsel and retail executives.
[Photo Credit: Copyright 2019. Candace R. Arrington]
Fashion Blog - Retailing with Foam and A Good Swing | Alan Behr (author)05/16/2019 | The Fashion Industry Law Blog
Media - Alan Behr, Partner in the Intellectual Property Law Practice, is quoted by IP Pro Magazine regarding the filing of a European multimedia trademark application by a video game developer requesting the protection of its gory slow-motion kills appearing in its Sniper Elite games. | Read here05/09/2019 | IP Pro Magazine
Media - Fashion Practice Chair, Alan Behr, comments on allegations of copyright infringement and trade dress protection involving COOGI, the Australian fashion brand made famous by rapper Biggie Smalls/The Notorious B.I.G., against the Brooklyn Nets, the NBA, Nike Inc., among others. | Read here03/21/2019 | Bloomberg Law
Fashion Blog - "Perfect Fit - Part II" | Alan Behr (author)02/20/2019 | Fashion Industry Law Blog
Media - Alan Behr, member of the Intellectual Property Law Practice, has been quoted by IPPro magazine in the article, "Oracle v Rimini: The shifting sands of copyright". | Read here02/08/2019 | IPPro Magazine
The U.S. Supreme Court will resolve a conflict in the Circuits concerning whether the copyright statute's authorization of recovery of “full costs” includes costs, such as expert witness fees, for which recovery is not otherwise authorized under the general statutory provision defining recoverable costs in every federal case. Alan commented on that question and the broader problem of ambiguity and interpretation of a copyright statute dating from 1976—on that he believes is long overdue for overhaul or full replacement.
Accolade - Alan Behr, Chair of the Fashion Law Practice, and Monica McCabe, Chair of the Intellectual Property Law Practice, selected to the World Trademark Review 2019 (WTR 1000), annual ranking of trademark professionals worldwide. | Read here02/04/2019 | World Trademark Review
As seen in the published directory:
Phillips Nizer colleagues Alan Behr and Monica McCabe both receive great feedback from the market: “Alan is hugely efficient in prosecution as well as in contentious matters and is especially effective in fashion and design cases.” “He has strong European ties, is very easy to communicate with and can move matters forward very fast.” “Extremely quick on her feet, Monica can handle a heavy workload with the utmost professionalism and an eye for detail. That she cares deeply about her clients really shows.” Behr chairs the firm’s fashion practice, while McCabe leads the IP group.
Media - Alan Behr, Chair of the Fashion Practice, comments on New York City's new rezoning plan of the historic Garment District | Read the article01/17/2019 | The Commercial Observer
Media - Alan Behr, member of the Corporate and Intellectual Property Law Practices, quoted and heavily referenced in IPPro The Internet article on Marvel publisher, Stan Lee12/11/2018 | IPPro The Internet
Alan Behr is referenced and quoted heavily in one of December's IPPro The Internet’s features, “A look at Marvel IP: Stan Lee’s passing shook the comic book industry and superhero film industry he inspired, leaving the question: what is the future of Marvel IP?” The legendary American comic-book writer, editor, and publisher, who was executive vice president and publisher of Marvel Comics, passed away on November 12, 2018.
Fashion Blog - Alan Flusser – Part 3: Listen Up, Counsel: This One is for You | Alan Behr (author)11/02/2018 | The Fashion Industry Law Blog
Fashion Blog - Alan Flusser – Part 2: The American Male and His Wardrobe | Alan Behr (author)10/04/2018 | The Fashion Industry Law Blog
Super Lawyers® (2018)09/13/2018
Seventeen Phillips Nizer attorneys were announced on September 13, 2018 as selected for inclusion on the 2018 New York Metro Super Lawyers and Rising Stars lists. Attorneys represented a cross-section of several practice areas and industry teams.
Fashion Blog - Alan Flusser – Part 1: A Question of Balance | Alan Behr (author)09/06/2018 | The Fashion Industry Law Blog
U.S. News - BestLawyers® (2019)08/15/2018
Best Lawyers® recognized Alan Behr, Helene M. Freeman, Michael W. Galligan, Donald P. Perry, Evan J. Spelfogel, Martin B. Wasser and Elliot J. Wiener.
Website Accessibility Suits Threaten Omnichannel Sales (Law360)07/30/2018
In the course of the development of the common law, with its unique dependence on a sometimes unholy alliance between enacted and judge-made law, curiosities will arise. Retailers, auction houses and others with consumer websites that support physical sales facilities have seen this recently, as lawyers around the country have driven in fifth gear to their nearest federal courthouses to file lawsuits on behalf of the visually impaired, claiming that those websites exclude the visually impaired from equal access in violation of federal law.
Media - Intellectual Property partner and chairman of our Fashion Law Practice, Alan Behr, addresses the proliferation of counterfeit goods associated with well-known brands and the presence of such goods on online retailer sites, such as Amazon, eBay and Alibaba.04/09/2018
Online marketplaces with third-party sellers, including Amazon, are not at fault under the law as long as they take counterfeits down when notified of their existence, as reported in the article, according to Alan. However, he continues, "If you are a brand owner, you have to be vigilant…Register copyrights, do your homework, have an investigator doing purchases, troll the web." Read "Can Amazon and its marketplace rivals fix their counterfeits problem?" published in Retail Dive.
Media - Corporate Practice partner Alan Behr and managing partner and Real Estate Practice co-chair Marc Landis comment on the Toys "R" Us bankruptcy filing and recent reports of major retailers, such as Target, Aldi and Big Lots, interested in the vacated properties owned or leased by the toy retailer.03/29/2018
Read "Target, Aldi, Big Lots eyeing Toys R Us real estate" published here in Retail Dive.
Media - Alan Behr, partner in the Intellectual Property Law Practice, commented on the Second Circuit Court's ruling regarding copyright and "fair use" in Intellectual Property Magazine.03/01/2018
The Fox News Network sued TVEyes, a media monitoring service, in the U.S. District Court of New York alleging infringed copyright of copied and re-distributed audiovisual content, enabling TVEyes’ subscribers to access of that content without Fox’s permission.
The Second Circuit ruled in favor of Fox News regarding the sharing of clips by TVEyes saying that their actions were "unlawfully profiting off the work of others by commercially re-distributing all of that work that a viewer wishes to use, without payment or licence.”
Alan's comments regarding the ruling:
“It’s great to see the Second Circuit affirm the limitations of fair use – even in a case where, to use a term it largely helped popularise, it found that the use in question was ‘transformative’ – that is, even though something new or at least perceivably different had been made from the use of content that was owned by someone else.”
He explained, “The key here was the extent of the use. The court noted that news segments are short and that the method of copying and dissemination by TVEyes would, ‘likely provide TVEyes’s users with all of the Fox programming that they seek and the entirety of the message conveyed by Fox to authorised viewers of the original’.”
U.S. News - BestLawyers® (2018)11/01/2017
U.S. News-Best Lawyers® announced on November 1, 2017, Phillips Nizer's recognition as one of the nation's "Best Law Firms" for 2018. The listing is presented in ranking tiers from 1 - 3. We ranked highly, Tier 1, nationally in Copyright Law, Trademark Law and Trusts & Estates Law. We were also ranked in the New York City Metropolitan listings.
Is this the real life? (IP Pro The Internet)10/02/2017
With emerging technologies, such as virtual reality (VR), breaking into the mainstream, already antique laws must rise to the occasion.
Media - “When Malls Were The Disruptors of Retail,” an article by Fashion Law chair, Alan Behr, was published by Chain Store Age, a leading source for retail news and industry analysis, including retail store operations, retail technology, store design and more.09/20/2017
Alan reflects on the change in retail from the early 1900s at a period of time when stand-alone department stores still existed, including Krauss Company in New Orleans, Louisiana run by his family, but were soon made obsolete over time by the development of malls.
Super Lawyers® (2017)09/20/2017
It was announced on September 20, 2017, that sixteen Phillips Nizer attorneys were selected for inclusion on the 2017 Super Lawyers list. Alternative Dispute Resolution, Banking, Business Litigation, Entertainment, Intellectual Property, and Trusts & Estates practices were represented.
Speaking Engagements - Partner Alan Behr presents, "f/8 and See You in Court: Legal Issues in Photography," at Adorama on Wednesday, June 21st.06/21/2017
Along with chairing Phillips Nizer's Fashion Law Practice, Alan is also a member of the Art Law and Intellectual Property Law Practices. He is a working photojournalist and art photographer. | YouTube Video Replay
About Adorama: One of the largest retailers of photography, video, electronics and imaging equipment, Adorama events attracts professionals, aspiring professionals and hobbyists.
Media - On the heels of the Supreme Court's ruling siding with the Asian-American rock band, The Slants, to register the band's name with the U.S Patent and Trademark Office (USPTO), Alan Behr was quoted by the San Diego Tribune and Law360 about the significance of the court's decision.06/19/2017
The band's lead singer, Simon Tam, filed a lawsuit after the USPTO refused to register the band's name citing the Lanham Act, which prohibits any trademark that could be cited as disparaging against "persons living or dead." The band's leader disagreed saying the band was reclaiming the historically disparaging word as a point of pride. With the Supreme Court's unanimous decision agreeing with the band that the trademark registration refusal was unconstitutional, it is speculated that this could impact how the First Amendment is applied in other trademark cases. (On a related note: The NFL Washington Redskins has been involved in a long-running dispute with the USPTO over allegations that the team's nickname is disparaging to Native Americans.)
For more about the ruling, see here: San Diego Tribune; Law360
Speaking Engagements - Alan Behr, Chair of the Fashion Law Practice and member of the Intellectual Property and Corporate & Business Law Practices, will co-present at the 2017 Internet Retailer Conference & Exhibition (IRCE) Conference being held in Chicago, Illinois (June 6 - 9, 2017).06/07/2017
Alan and his co-presenter, Zach Toczynski, Director, Anti-Counterfeiting at Levi Strauss & Co., will highlight "Knock It Off! Tactics to Combat Counterfeits" on Wednesday, June 7th (1:15 - 1:45 p.m.).
Media - Legendary recording artist Sir Paul McCartney filed a federal lawsuit in U.S. District Court in Manhattan against music publisher Sony/ATV over ownership of some of the Beatles’ most famous songs.01/20/2017Partners Helene Freeman and Alan Behr members of our Intellectual Property Law practice, were quoted in articles published by Forbes magazine and Digital Music News. Forbes included quotes by Helene, and Digital Music News published quotes by both Helene and Alan.
- Paul McCartney Sues To Win A Battle Duran Duran Lost (Forbes)
- 56 Years Later, Paul McCartney Wants His Beatles Songs Back… (Digital Music News)
- "Duran Duran Case Shouldn't Affect Paul McCartney Contracts" by Helene Freeman (Law360, January 30, 2017)
Media - Fashion Law practice chairman, Alan Behr comments to Luxury Daily and Logistics Management on the potential impact of the country’s new President-elect, Donald Trump, on the fashion and textiles industries, the luxury goods market, and U.S. trade agreements, including the TPP (Trans-Pacific Partnership).11/09/2016
U.S. News - Best Lawyers® (2017)11/01/2016
U.S. News-Best Lawyers® announced Phillips Nizer was recognized as one of the "Best Law Firms" in the nation for 2017 ranking highly nationally in Trusts & Estates Law. The firm was also ranked in the New York City Metropolitan area in Trusts & Estates Law, Copyright Law, Family Law, Intellectual Property Litigation and Trademark Law.
Super Lawyers® (2016)10/21/2016
On September 21, 2016 it was announced by Super Lawyers® that twenty-three Phillips Nizer attorney were selected for inclusion on the 2016 Super Lawyers and 'Rising Stars' lists. This is the second consecutive year the firm has had twenty-three lawyers recognized.
Media - Intellectual Property Watch quotes Alan Behr in “USPTO Refusal To Register Trademarks Breaches Free Speech”.09/30/2016
The article highlights the US Supreme Court’s recent decision to review the case of Lee v. Tam (a.k.a. "The Slants" case), to assess the constitutionality of the US Patent and Trademark Office’s refusal to register disparaging marks under the Lanham Act.
Media - Adweek quotes Intellectual Property and Corporate Law partner, Alan Behr, on the use of Olympic mascots in the article, “Why Official Olympic Mascots Are So Damn Weird: When a committee makes decisions, confusion is what you get.”08/16/2016
Unfortunately, in an effort not to offend anyone during such a large, global event like the Olympic Games, what is sometimes created by the host nation is a mascot that does not resonate well with others outside the country -- and even sometimes within the country.
According to Alan, “You have to come up with a character that works everywhere, and it can’t have a name that means the wrong thing in some language...You need a mascot that will work in both North and South Korea—and in Albania, Cuba and the People’s Republic of China.”
Those Were The Days (New York Law Journal)09/21/2015
U.S. News-BestLawyers® (2016)08/17/2015
In an announcement on November 2nd by U.S. News-Best Lawyers®, Phillips Nizer was recognized as one of the 2016 "Best Law Firms" in the nation ranking highly nationally in Trusts & Estates Law, Copyright Law and Trademark Law. The firm was also ranked in the New York City Metropolitan area in Trusts & Estates Law, Copyright Law, Family Law, Intellectual Property Litigation and Trademark Law.
Super Lawyers® (2015)10/01/2014
Phillips Nizer was honored to announce that twenty-three of its attorneys were recognized as 2015 Super Lawyers® and Rising Stars. Attorneys who were recognized represented over a dozen practice areas. The annual Super Lawyers® lists are a result of confidential peer review and independent research.
Super Lawyers® (2014)10/01/2014
In an announcement on September 23, 2014, twenty-six Phillips Nizer attorneys were recognized on the Metro New York 2014 Super Lawyers® and Rising Stars lists. Twenty-two partners, senior counsel and counsel were selected as Super Lawyers. Four counsel and associates were selected as Rising Stars. The 2014 selections crossed all major practice groups. The annual Super Lawyers® lists are a result of confidential peer review and independent research.
When Your Art Becomes My Art (New York State Bar Association, Inside magazine)01/01/2014
Reprinted with permission from: Inside, Winter 2013, Vol. 31, No. 3, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.
Super Lawyers® (2013)10/01/2013
Nineteen Phillips Nizer attorneys were selected by Super Lawyers® and recognized in the 2013 New York Super Lawyers - Metro Edition publication. As was the case in 2012, attorneys selected represented several practice areas. The Firm achieved a significant increase in the number of honorees, including one recognized as a "Rising Star". Each year, attorneys are nominated across various legal practices and vetted through a process of confidential peer review. Independent research by the publisher is an important component before one can be selected as a "Super Lawyer".
U.S. News-Best Lawyers® (2013)10/01/2013
For the second consecutive year, Phillips Nizer was honored as one of the nation's "Best Law Firms". The Firm received high ranks the areas of Trusts & Estates Law, Trademark Law, Copyright Law and Family Law.
Super Lawyers® (2012)09/21/2012
Phillips Nizer was honored with the selection of twelve of its attorneys for the 2012 New York Super Lawyers – Metro edition. The attorneys were recognized across seven practice areas — Alternative Dispute Resolution, Entertainment Law, Environmental Law, Estate Planning & Probate Law, Family Law, General Litigation, and Real Estate Law.