By: Henry T. Chou, Esq.

Even in the aftermath of the worst recession in American history and today’s uncertain economic climate, the U.S. remains a very desirable destination for immigrants.  Today, there is a new breed of immigrants who do not arrive penniless like the generations before them, but come flush with cash and a mission of invigorating the American economy.

The Chinese, in particular, have taken on this mission more than any other immigrant group.  According to the U.S. Citizenship and Immigration Service (USCIS), thousands of wealthy nationals of the People’s Republic of China (PRC) have applied for the EB-5 visa, which comes with a green card and a path towards citizenship.

Under the EB-5 visa program, foreign investors must finance commercial projects in the U.S. by investing at least $1 million (or $500,00 in a targeted employment area) and create at least 10 full-time jobs. EB-5 investors must undergo a background check, identify the source of their wealth and create and sustain 10 full-time jobs. If all of the requirements are satisfied and sustained after five years, the investors and their families are eligible for citizenship.

While the EB-5 visa program attracts a diverse range of applicants, Chinese nationals comprised a dominant majority – three quarters – of the applicants in 2011.  According to USCIS, 2,969 Chinese nationals applied for the program and 934 of those applicants were approved in 2011.  These figures represent a huge increase from previous years.  For example, in 2007, only 270 Chinese nationals applied and only 161 were approved, accounting for only about a third of the totals.

The explosion of Chinese applicants is attributable to the rapid economic development of China, which has created an abundance of millionaires and billionaires.  Surveys indicate that a majority of these newly rich are either considering emigrating or have already implemented plans to do so.  Those surveyed cite education, advanced medical treatment, environmental issues and due process rights as their reasons for emigrating.

New Jersey, which is a highly populated state located strategically between the metropolitan areas of New York City and Philadelphia, is one of the top destinations of EB-5 investors.  USCIS has established a regional center in New Jersey, which presently facilitates investment in Bergen, Essex, Hudson, Mercer, Middlesex, Passaic and Union Counties.  Permitted investment options currently include hotels, restaurants, retail stores, office buildings, light industrial warehouses, civic buildings, apartments, condominiums and various types of mixed use development.

As one of the largest full-service firms in central New Jersey, Hill Wallack LLP is well-positioned to assist Chinese EB-5 investors with their immigration applications and business transactions and operations in New Jersey.  The firm has attorneys on staff who are both fluent in Chinese and experienced in the areas discussed above.

By: Henry T. Chou, Esq.

Even in the aftermath of the worst recession in American history and today’s uncertain economic climate, the U.S. remains a very desirable destination for immigrants.  Today, there is a new breed of immigrants who do not arrive penniless like the generations before them, but come flush with cash and a mission of invigorating the American economy.

The Chinese, in particular, have taken on this mission more than any other immigrant group.  According to the U.S. Citizenship and Immigration Service (USCIS), thousands of wealthy nationals of the People’s Republic of China (PRC) have applied for the EB-5 visa, which comes with a green card and a path towards citizenship.

Under the EB-5 visa program, foreign investors must finance commercial projects in the U.S. by investing at least $1 million (or $500,00 in a targeted employment area) and create at least 10 full-time jobs. EB-5 investors must undergo a background check, identify the source of their wealth and create and sustain 10 full-time jobs. If all of the requirements are satisfied and sustained after five years, the investors and their families are eligible for citizenship.

While the EB-5 visa program attracts a diverse range of applicants, Chinese nationals comprised a dominant majority – three quarters – of the applicants in 2011.  According to USCIS, 2,969 Chinese nationals applied for the program and 934 of those applicants were approved in 2011.  These figures represent a huge increase from previous years.  For example, in 2007, only 270 Chinese nationals applied and only 161 were approved, accounting for only about a third of the totals.

The explosion of Chinese applicants is attributable to the rapid economic development of China, which has created an abundance of millionaires and billionaires.  Surveys indicate that a majority of these newly rich are either considering emigrating or have already implemented plans to do so.  Those surveyed cite education, advanced medical treatment, environmental issues and due process rights as their reasons for emigrating.

New Jersey, which is a highly populated state located strategically between the metropolitan areas of New York City and Philadelphia, is one of the top destinations of EB-5 investors.  USCIS has established a regional center in New Jersey, which presently facilitates investment in Bergen, Essex, Hudson, Mercer, Middlesex, Passaic and Union Counties.  Permitted investment options currently include hotels, restaurants, retail stores, office buildings, light industrial warehouses, civic buildings, apartments, condominiums and various types of mixed use development.

As one of the largest full-service firms in central New Jersey, Hill Wallack LLP is well-positioned to assist Chinese EB-5 investors with their immigration applications and business transactions and operations in New Jersey.  The firm has attorneys on staff who are both fluent in Chinese and experienced in the areas discussed above.

By:  Christina L. Saveriano, Esq. and David J. Truelove, Esq.

Your most important business asset is that which sets you apart from your competitors. If that asset is protectable, confidential information and/or a “trade secret,” reviewing and analyzing recently-passed New Jersey legislation is required reading.

Gov. Chris Christie has recently signed the New Jersey Trade Secrets Act. This law has significant implications for employers that possess information protected under the Trade Secrets Act. This warrants review of any current employment agreements and restrictive covenants currently in place for revision. Likewise, employers should consider entering into such agreements with employees if no such agreements are in place.

As a starting point, employers should review any existing agreements which define the term “trade secret” to confirm that it is consistent with the definition under the Trade Secrets Act. In addition, employers should consider alerting employees to the consequences of misappropriation of the employer’s trade secret which under the Trade Secrets Act include the entry of injunctive relief, imposition of punitive damages and an award of costs and attorney’s fees.

Furthermore, employers should be aware that an action for misappropriation of a trade secret against an employee, under the Trade Secrets Act, must be brought within three years after the misappropriation is discovered. Passage of the New Jersey Trade Secrets Act now creates a statutory right for employers where only case law has existed to date.

We at Hill Wallack LLP stand ready to assist with any questions and assistance needed in view of this new legislation.

By: Henry T. Chou, Esq.

The China Investment Corporation (CIC), a sovereign wealth fund responsible for managing the foreign exchange reserves of the People’s Republic of China (PRC), recently declared that it will seek to diversify its holdings by investing directly in infrastructure projects in the United States.

The PRC has invested two-thirds of its reserves in U.S. dollars, mostly U.S. treasury bonds and agency bonds, totaling U.S. $2.5 trillion. In response to the devaluation of the dollar, the PRC sought a better return by creating the CIC in 2007 to invest in enterprises across the world. Over the past four years, the CIC has limited its investments mostly to smaller equities in publicly traded companies, but its recent announcement signals a dramatic shift in investment strategy.

According to its Chairman and CEO, Lou Jiwei, “China is keen to get involved” in improving U.S. infrastructure, which “badly needs more investment.” He cited energy, water, transportation, digital communications and waste disposal as potential investment opportunities.  This strategy comports with the PRC’s goal of encouraging Chinese companies to invest aboard to diversify an economy that has traditionally relied heavily on exports and investment.

Economists surmise that the CIC’s interest in infrastructure probably reflects its own commercial views, rather than those of the PRC government. In particular, investments in infrastructure could help CIC earn a more stable profit and reduce China’s exposure to U.S. and European government bonds amid their sovereign debt crises.

It remains to be seen how the CIC will actually implement its plan in the United States. While many areas of infrastructure, such as energy and digital communications, are in the private sector, other major areas, such as transportation and water, are publicly-owned and operated.

Whether the CIC or other Chinese enteprises seek to invest in private or public projects, they will undoubtedly face regulatory hurdles that require the assistance of local counsel familiar with municipal, county, state and federal regulations in the United States. Hill Wallack LLP has represented Chinese investors in renewable energy projects and has experience in conducting extensive due diligence associated with the development of a large natural gas power plant in New Jersey. We stand ready to assist foreign entities seeking to invest directly in U.S. infrastructure projects.

By: Kun Zhao, Esq.

With emerging and evolving technologies widely available on the internet, advertising using keyword-triggered online ad programs is becoming increasingly effective. For example, Google Adwords is a very powerful tool in online advertising because it manipulates search results to artificially prioritize an advertiser’s website over other possible results. A simple text ad consists of a hyperlink headline to the advertiser’s website, one or several short lines of descriptive text and the URL of the advertiser’s website. An advertiser purchases the keywords with which it wants its website and the ad to be associated. When someone uses a Google search and the “keyword,” the ad will appear alongside other search results. Similar programs may be used on some most electronic devices and networks, such as smart phones and iPads.

While advertising on the internet, companies may wish to take advantage of their competitors’ widely-known trademarks in the industry. One of the very limited legitimate ways to exploit a competitor’s goodwill is to purchase trademarked terms in search engine keyword advertising on the internet, such as Google Adwords or Microsoft Bing.

The discussion of whether an advertiser can legitimately use a trademarked term as keyword in internet advertising started in Brookfield Commc’ns, Inc. v. West Coast Entm’t Corp., 174 F.3d 1036 (9th Cir. 1999)), where the Ninth Circuit relied on “initial interest confusion doctrine,” holding that non-confusing search results that were listed when a trademarked term was used as a search term infringed upon the plaintiff’s trademark.

After 12 years of evolving case law on trademark infringement involving the internet in the federal courts since Brookfield, the most recent decision in Ninth Circuit has clarified the test in analyzing and determining whether such use implicates trademark infringement. In a recent decision styled Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137 (9th Cir. 2011), the defendant purchased the plaintiff’s trademark “ActiveBatch” in search engine keyword advertising, which when keyed into many search engines, like Google and Microsoft Bing, produces a results page showing “www.NetworkAutomation.com” as a sponsored link.

In reaching its conclusion, the Ninth Circuit agreed with the Second Circuit in finding that such use is a “use in commerce” under the Lanham Act. However, the Ninth Circuit refused to rigidly apply the “trokia” factors in Brookfield. Instead, it adhered to two long-stated principles as the proper inquiry of trademark infringement in the context of search engine keyword advertising: “the Sleekcraft factors (1) are non-exhaustive, and (2) should be applied flexibly, particularly in the context of Internet commerce.” The Court also emphasized that “because the sine qua non of trademark infringement is consumer confusion, when we examine initial interest confusion, the owner of the mark must demonstrate likely confusion, not mere diversion.”

When analyzing and weighing eight Sleekcraft factors, the Court identified the four most relevant factors to the analysis of the likelihood of confusion in keyword advertising: (1) the strength of the mark; (2) the evidence of actual confusion; (3) the type of goods and degree of care likely to be exercised by the consumer; and (4) the labeling and appearance of the advertisements and the surrounding context on the search results page. Noticeably, the Ninth Circuit gave little weight on the factors of “convergent marketing channels” and “degree of care exercised by consumers” as online advertising are so common toady and online commerce becomes commonplace. Finally, because the lower court failed to apply Sleekcraft factors flexibly and wrongly relied on the “Internet troika” instead of these factors, the Ninth Circuit reversed and vacated the preliminary injunction.

This decision is significant because it implies that the purchase and use of trademarked term in search engine keyword advertising does not inherently constitute trademark infringement. It clarifies the test for trademark infringement in cases involving the internet. As to all future internet cases, it indicates that the Court will apply the traditional long stand eight Sleekcraft factors in a flexible manner and in a case specific context.