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Emily Ayoob

ADA Compliance: Websites Need to Be Accessible Too

ADA Compliance: Websites Need to Be Accessible Too

ADA Compliance: Websites Need to Be Accessible Too 1920 1080 Emily Ayoob

In recent years, a new kind of ADA compliance lawsuit has emerged. Indeed, plaintiffs have started targeting websites—including websites operated by non-U.S. entities—for failure to comply with the Americans with Disabilities Act (“ADA”) of 1990.

The Americans with Disabilities Act was enacted in 1990 to prohibit discrimination against disabled persons and to ensure that disabled persons enjoy equal rights and opportunities. In particular, Title III of the ADA provides that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” The ADA itself, which was enacted before the Internet became widespread, only lists physical places as examples of “places of public accommodation.” That has not stopped plaintiffs from bringing claims against websites. In doing so, they benefit from the support of the Department of Justice (“DOJ”), which has stated, in guidance it has issued on the ADA, that it has interpreted the ADA to cover websites operated by public accommodations.

Courts have also been receptive to such claims, agreeing to hear them despite defendants’ objections. There is, however, a split among courts as to which websites fall within the scope of the ADA. Some courts have ruled that places of public accommodation do not need to be physical places, and that, therefore, websites themselves could be places of public accommodation. For instance, in National Federation of the Blind v. Scribd Inc., the United States District Court for the District of Vermont found that a digital library offering reading subscription services via a website was a place of public accommodation. The court (and others like it)’s rationale is that Congress, in enacting the ADA, intended for the Act to have broad coverage so that disabled people would be able to fully participate in all aspects of society, and that, although when the ADA was enacted in 1990, the Internet was only in its infancy, it has now become central to many aspects of society. On the other side of the split, some courts require a strong nexus between the website and a physical place of public accommodation for the website to be covered by the ADA. For instance, earlier this year, in Robles v. Domino’s Pizza, LLC, the United States Court of Appeals for the Ninth Circuit noted that “Domino’s website and app facilitate access to the goods and services of a place of public accommodation—Domino’s physical restaurants,” and therefore ruled that the ADA applied to the website (and – it must be noted – the mobile app). The court emphasized that the nexus between the website and the physical place of public accommodation was “critical” to its analysis.

Although many of the cases brought so far have focused on Title III of the ADA, new cases are now being brought under Title I. Title I prohibits discrimination on the basis of disability in the context of job application, hiring, advancement and dismissal of employees, and terms and conditions of employment. For instance, in Kasper v. Ford Motor Co., a case filed earlier this year, the plaintiff is alleging that the defendant violated Title I by failing to offer disabled people a proper accessible alternative to their online job application process.

For the time being, the exact standard websites should adhere to in order to be in compliance with the ADA remains unclear. The DOJ has not yet made available any guidance on website compliance with the ADA and may not do so in the near future. The DOJ has recently reiterated, however, that the “absence of a specific regulation does not serve as a basis for noncompliance” with the ADA. As a result, businesses operating a website have little choice but to turn to privately created standards, the most commonly relied-upon standard being the Web Content Accessibility Guidelines (“WCAG”) 2.0. WCAG 2.0 contains guidance on how to make websites perceivable, operable, and understandable for people with disabilities, as well as robust (i.e. able to withstand changes in technology). At least one court—the United States District Court for the Southern District of Florida in Gil v. Winn Dixie Stores, Inc.—has ordered a company to ensure that its website conforms with WCAG 2.0. The DOJ has nonetheless specified recently that “noncompliance with a voluntary technical standard for website accessibility [such as WCAG 2.0] does not necessarily indicate noncompliance with the ADA,” thereby affording some flexibility to websites on how they comply with the ADA. However, it is generally considered best practice for all websites to meet basic accessibility criteria, not just because of the threat of an ADA lawsuit, but because it simply sends a more positive message to all consumers. In addition, compliance with basic accessibility guidelines should be standard practice, as the skills, effort and/or tools required to meet such guidelines should be minimal for most developers.

In sum, in the absence of further clarification by the DOJ, Congress, or the Supreme Court on which websites fall within the scope of the ADA, and on what compliance with the ADA exactly entails for a website, it is advisable for any website that could potentially have US-based visitors to comply with WCAG 2.0 in order to mitigate the risk of ADA compliance lawsuit.

Important Changes in the US Patent & Trademark Office

Important Changes in the US Patent & Trademark Office

Important Changes in the US Patent & Trademark Office 1920 1080 Emily Ayoob

The United States Patent and Trademark Office (USPTO) recently announced a new rule effective August 3, 2019, requiring all foreign-domiciled trademark applicants, registrants, and parties to Trademark Trial and Appeal Board (TTAB) proceedings to be represented by an attorney who is licensed to practice law in the United States. This requirement applies to applications, post-registration maintenance documents, provisional refusals in Madrid applications and TTAB proceedings.

Under the rule, the USPTO will correspond only with representatives who are qualified U.S. attorneys. If an application is filed without complying with this new rule, the USPTO will issue an Office Action that appointment of a qualified US Attorney is required. Failure to comply will result in the abandonment of the application.

Foreign-domiciled applicants who submit an application based on section 66(a) of the Act (Madrid applications) are subject to the requirement in all provisional refusals (i.e. Office Actions). However, provided the initial application with the International Bureau of the World Intellectual Property Organization complies with all other requirements for registration, the initial application will be exempt from the requirement.

This rule also removes from the regulations the authorization for reciprocally recognized Canadian patent agents to practice before the USPTO in trademark matters but continues to allow reciprocal recognition of Canadian trademark attorneys representing Canadian parties in U.S. trademark matters.

Finally, please note that the USPTO has instituted a program to perform random audits of US trademark registrations upon renewal. Registrations are randomly selected for audit to generally determine whether marks are in use with the goods and services identified in the registration. If a renewal is audited, the USPTO will require the owner to submit proof of use for at least two additional goods or services per class. If proof of use for the goods and/or services identified is not available, the identified goods and any other goods not currently in use will be deleted from the registration. Accordingly, it is important to be accurate when listing the goods and services sold in connection with the US-based trademark registration.

Please contact us if you have any questions about the above changes and requirements.

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