LSU KIN 3800 Bowers Exam 2 Key Terms

Trademark

A symbol, word, or phrase legally registered to represent a company or product. Important for branding in sport and business.

Service Mark

the word, name, or symbol relates to a service (e.g., Ticketmaster, IMG, YMCA)

Collective Marks

marks that are used to indicate membership within an organization, such as a professional players association, are called

Certification Mark

indicates that a product meets certain certification standards, such as those maintained by Underwriters Laboratory, Inc.

Purpose of Trademarks

To identify the source or origin of a product or service and to distinguish it from others.

To protect consumers from confusion and deception

To designate a consistent level of quality of a product or service.

To represent the goodwill of the owner or the owner's products and services

To signify a substantial advertising investment and business asset.

Goodwill

the primary intangible asset of a company, generally comprised of reputation, contact networks, intellectual property, and branding"

Inherently Distinctive Marks

Further classified as fanciful, arbitrary, or suggestive

Fanciful Marks

marks are the most distinctive trademarks and are defined as coined words that have been invented for the sole purpose of functioning as a trademark.

Arbitrary Marks

words, names, symbols, or devices that are in common linguistic use, but when used with the goods or services, neither suggest nor describe any ingredient, quality, or characteristic of the goods or services.

Suggestive Marks

subtly connotes something about the service or product but does not actually describe any specific ingredient, quality, or characteristic of the good or service.

escriptive and generic marks.

Trademarks that are not inherently distinctive may either be able to possess or acquire the required distinctiveness and therefore obtain registration, or be deemed generic and not eligible for registration as a protected trademark.

acquired distinctiveness

Descriptive marks may eventually possess the required distinctiveness for trademark protection if they have acquired secondary meaning.

generic marks

the common names of products or services and are considered part of the public domain. For example, words such as gymnasium and arena are common names for certain types of venues.

Trade Dress

legally defined as the "total image and overall appearance" of a product, or the totality of the elements, and "may include features such as size, shape, color or color combinations, texture, graphics."

Functionality

a common defense in trademark infringement cases and is discussed in greater detail later in this chapter.

Trademark Infringement

occurs when a person uses in commerce any "reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive" without consent of the registrant

Fair Use

one is permitted to use a protected mark and not infringe upon those trademark rights based on the concept of

Trademark Dilution

similar to trademark infringement, but it occurs when the defendant is not a direct competitor and when the defendant's use of a similar mark either tarnishes the reputation of the plaintiff's mark or blurs the ability of the plaintiff's mark to distinguish the plaintiff's goods and services from those of the defendant.

tarnishment

a similar mark is used in such a way as to disparage or harm the reputation of a famous mark.

Blurring

the more traditional form of dilution, occurs when a mark that is similar to a famous mark is used by a noncompetitor in such a way that over time will diminish the famous mark's value by detracting from the exclusiveness of the famous mark.

Originality

Requires a work to be created by the author himself or herself and to contain some minimal amount of creativity.

Fixation

requires that the work be put into a tangible form - written down or recorded.

Real Property

Land and those things permanently attached to land

Personal Property

Chattel (tangible)

Physical items that can be moved between locations

Intellectual Property (intangible)

Copyrights, trademarks, patents, trade secrets

Contract Law

Purchase/Sale of real property governed by

Negligence Law

Duties/Obligations of owners to people on their property is governed by

Copyright

Legal protection given to the creators of original works (literary, musical, artistic, etc.). Grants exclusive rights to use and distribute.

Constitution

How the power given to the government, by its people, will be used in order that the people may benefit from an ordered system of liberty

Subject Matter Jurisdiction

judicial authority to hear a particular type of case

Subject matter jurisdiction Topics that must be met

"all cases, in law and equity, arising under this Constitution, [and] the laws of the United States..."

federal courts "shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States"

Diversity Jurisdiction

Disputes between residents of different states

Title IX of the Education Amendments of 1972 (20 U.S.C. 1681-1688)

prohibits sex-based discrimination in any school or other education program that receives federal money

Title VII of Civil Rights Act of 1965 (42 U.S.C. 2000e)

prohibits employment discrimination based on race, color, religion, sex and national origin

Equal Pay Act of 1963 (29 U.S.C. 206d)

no employer...shall discriminate...between employees on the basis of sex by paying wages to employees...at a rate less than the rate at which he pays wages to employees of the opposite sex...for equal work

U.S. Constitution

a compilation of powers that's decided were better administered by a national government

Bill of Rights

limits even further the things the Federal govern can and can't do

Amendment 1 (Freedom of Speech, Assembly, and Religion)

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances

Amendment 2 (Right to Bear Arms)

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed

Amendement 3 (No Quartering)

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law

Amendment 4 (Right to Privacy/Search and Seizure/Probable Cause)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

Amendment 5 (Rights of the Accused/Due Process/Takings Clause)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Amendment 6 (Right to A Fair Trial)

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment 7 (Rights to A Trial by Jury)

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment 8 (Cruel and Unusual Punishment)

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

Amendment 9 (Enumerated Rights)

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

Amendment 10 (States Rights)

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people

14th Amendment (Equal Protection Clause)

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Because the U.S. Constitution limits federal and state power

It only applies to federal and state actors

Only governs those things listed

Two prong test

Is there a state actor?

Is there a compelling state interest?

Who are state actors?

Federal and state governments

Any group that acts in a "governmental way"

Public schools, city/county governments, police departments, recreation departments

Receive federal/state monies

Only state actors can violate constitutional rights

No state actor, no violation of the constitution

Nonfundamental rights

Mild scrutiny

Rationally related to a legitimate state interest

Typically economic issues or social welfare issues

Fundamental rights

Strict scrutiny

Necessary to accomplish a compelling state interest

Autonomy and privacy

Property Law

Right to keep and own property is fundamental to being American

5th Amendment of the U.S. Constitution

No person shall...be deprived of life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without just compensation ("Takings Clause")

14th Amendment extended the 5th Amendment to the states

nor shall any state deprive any person of life, liberty, or property, without due process of law

Landlord/Tenant Relationship

Lease agreements

(contract)

Facility owner (lessor)

Tenant (lessee)

Right to use and occupy

Lease will grant the right to use the facility and occupy certain spaces that must be clearly and specifically defined

Rental Fees

Represent consideration for the contract and should be clearly expressed

Fees for Additional Services

Event security; merchandise sales; ushers; parking attendants; ticket takers; labor for setup and teardown; audio, maintenance; administrative assistance; etc.

Revenue Sharing

Does lease provide whether or not certain revenues will be shared between parties?

Rental Usage Terms and Conditions

"Do's and Don'ts" of the facility

Constructive Eviction

Actions of a landlord that so materially disturb or impair a tenant's enjoyment of the leased premises that the tenant is effectively forced to move out and terminate the lease without liability for any further rent.

Three Elements of Constructive Eviction

Substantial Interference

Landlord at Fault

Tenant moves out

Substantial Interference

offensive, inconvenient, or annoying to an average person in the community in regard to living in the apartment

Landlord at fault

The landlord does not uphold the proper requirements of the standard of living

Tenant moves out

The tenant vacates the premises

Kitchen Sink Provisions

- Non-assignment

- Choice of law

- Hold harmless clause

- Indemnification clause

- Insurance clause

- Force majeure (Acts of God)

- Damages clause

Chattel

Physical things that can be moved from place to place

Sporting equipment; uniforms; office supplies; etc.

Intellectual Property

Property rights associated with copyrights, patents, trademarks, trade secrets, and trade dress

A single product could gain protection for

Design (patent)

Label (copyright)

Packaging (trade dress)

Slogan (trademark)

Strict Scrutiny

STRICT/Compelling Interest

Necessary to accomplish a compelling state interest

Intermediate Scrutiny

INTERMEDIATE

Government must show a substantial (important) government interest

Mild Scrutiny

rationally related to a legitimate state interest

Rational Basis Review

MILD

The standard used by the courts to determine the constitutionality of a law or government action if neither strict scrutiny nor intermediate scrutiny applies.

Due Process

Simply, it's is an assurance that all levels of American government must operate within the law and provide fair procedures

Equal Protection

Law also recognizes special protections for classes of individuals that have been historically subject to discrimination

Morals

Subjective ideas of right and wrong from ideas of right and wrong that we are able to share with each other

Ethics

Norms shared by a group on a basis of mutual/reciprocal recognition

Manifests from within the community

More fully integrated the community the greater the mutuality of intelligibility

Ethics conveyed by

action or narrative rather than precept or formality

Normative Ethics

Ethical theories that debate the innate or natural value of an action, thought, or feeling

Determining virtues and debating rightness or wrongness are normative practices (death penalty?)

Descriptive ethics

About action (what humans do to one another and themselves)

How normative ethics are used where it really counts

Rooted in psychology, anthropology, and sociology

Ethical Foundations

Different schools of thought regarding normative ethics

Consequentialism/utilitarianism

Actions based on maximum benefit/minimum harm

Deontology

Ethical approach based on duties and rules. Actions are right or wrong regardless of outcomes (Kantian ethics).

RULE BASED

Virtue ethics

Ethics based on developing good character traits (virtues) like honesty, courage, and integrity. Focuses on who you are, not just what you do.

Utilitarianism

Ethical theory focused on the greatest good for the greatest number. Outcomes matter more than intentions.

OUTCOME BASED

Classical Utilitarianism

version of utilitarianism that posits that the morally right act is that which maximizes the greatest good for the greatest number; the idea is associated with Jeremy Bentham and Henry Sidgwick.

Jeremy Bentham (1748-1832)

Argued an action is good, right, and virtuous based on consequences of the action (Differs from previous philosophical thought)

If outcome of action increases pleasure, it is ethically good; if outcome of action increases pain, it is ethically not good

John Stuart Mill (1806-1873)

Argued there are higher level pleasures that those people who have experienced both view the higher (intellectual) as better than the lower (merely sensual)

Henry Sidgwick (1838-1900)

Sidgwick argues that the utilitarianism of Bentham and Mill doesn't go far enough

One should maximize the product of the action (pleasure/pain)

G. E. Moore (1873-1958)

Disagreed with the hedonistic value theory (pleasure/pain) of classical utilitarianism

We should promote the good, but good included far more than what could be reduced to pleasure

Agent-centered Deontology

Theories focused on the duties of the moral agent (the person acting)

Agent has an obligation to take or refrain from taking a certain actions based on rules

Agent-centered Deontology: Mental State

An action is wrong or right because of the intentions that motivated it

Agent-centered Deontology: Actions

We are categorically forbidden to cause evils (such as killing innocents) directly, but are permitted to allow, enable, or accelerate them under some circumstances

Patient-centered Deontology

Rights based rather than duty based

An action is wrong if it violates a person's rights

Contractarian

contract/promise based

Divine command

command of God

Kant's Categorical Imperative

Sought to answer: What is good?

Only good is "good will"