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by: Coralie Doyle


Coralie Doyle
GPA 3.84

Paul Breaux

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Paul Breaux
Class Notes
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This 10 page Class Notes was uploaded by Coralie Doyle on Tuesday October 13, 2015. The Class Notes belongs to BLAW 3202 at Louisiana State University taught by Paul Breaux in Fall. Since its upload, it has received 24 views. For similar materials see /class/222651/blaw-3202-louisiana-state-university in Business Law at Louisiana State University.




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Date Created: 10/13/15
Chapter 4 Intellectual Property Intellectual Property A number of intangible rights which include trade names trademarks service marks trade secrets copyrights and the right of publicity Integral part of the promotion process Licenses amp Endorsements Intellectual property rights are often transferred to another party for a fee The owners can grant another privilege to use it in specified ways Authorization is usually in the form of a license or endorsement License permission granted by an owner of intellectual property to another party to use the property in an agreed upon manner Endorsement a public statement of preference for and recommendation of that product or service by a person or entity Trademarks Used to identify property Includes words symbols or a combination of the two Can also include shapes colors sounds and movements Trademark A mark to identify goods with the manufacturer 0 0 Service Mark A mark to identify the provider of service 0 Trade dress Usually includes a trademark and the entire package fo the product or service 0 Trade name identifies the business itself 0 Certification Mark To certify compliance with standards Like Good Housekeeping seal of approval 0 Collective mark To indicate membership in a group These rights are assets The rights must be protected from other parties who may try to exploit the marks without authorization Trademark laws are designed to establish who has rights in marks and remedies for infringement Lanham Act Designed to prevent nonowners from exploiting the goodwill or recognition of an existing mark Provides for registration of trademarks and service marks and creates a federal cause of action of infringement of federally registered trademarks After 5 years of continuous use the registration can become incontestable Trademark registration is valid for 10 years and can be renewed indefinitely provided its actual use in interstate commerce Remedy is to stop use and compensate owner for infringement applies even if the mark isn t registered also protects trade names which cannot be federally registered Trademark Law Similar to Lanham Act TrademarkAny work name symbol device or combination used by a person to 0 identify goods made or sold by him and to distinguish them from goods made or sold by others 0 Service mark Mark used in the sale or advertising of services to identify and distinguish them from the services of others Mark Any trademark or service mark entitled to registration whether registered or not 0 Trade name word name symbol device or any combination used by a person to identify his business vocation or occupation and distinguish it from those of others O O O Trademark is considered used when it is I On goods when it is placed in any manner on the goods or their containers or the displays associated with or on the tags or labels affixed to such goods throughout the state I On services when it is used or displayed in the sale or advertising of services rendered in this state Powers of the sect of state reservation of trade names trademarks and service names I The exclusive right to the use of a trade name trademark service mark may be reserved by any person intending to apply for a trade name etc I The sect of state shall not authorize registration or use of any trade name etc which deceptively or falsely suggests that the organization is charitable when it does make a profit lnfringement Liable to a civil action suit by the owner of the registered trademark Not entitled to recover profitsdamages unless the acts have been committed with the intent to cause confusion In order to obtain relief the plaintiff must establish 3 elements I Distinctive A mark must be distinctive to have protection under the law Arbitrary or fanciful marks bear no relationship to the product or service and are the strongest nikeapple Suggestive or descriptive terms suggest a quality about the product or service and can be trademarked but not as easily as distinctive Generic terms are common descriptive words it is very difficult to obtain a trademark on a generic term Generic terms may obtain a llsecondary meaning if they become the public s association with the product or event Ownership Ownership in a mark is achieved pursuant to the use and registration as set forth in the law Likelihood of confusion in most cases the plaintiff must prove that the defendant s use of the mark is to cause confusion among consumers The public is associating the defendants product with the plaintiff s mark Court considers the following factors 0 The strength of the plaintiff s mark 0 The similarity between the marks The similarity of the product or services Actual confusion among consumers o The sophistication of the buyers Also may consider the plaintiff s investment and treatment of the mark methods of advertising the geographical distribution of the product and the similarity of product appearances Passing off Occurs when a product is sold as a trademark brand although it was not manufactured or licensed by the company that owns the mark Conterfeit products 0 Reverse confusion occurs when the established mark of a smaller lessknown company is adopted by a larger company 0 Disparagement Usually deal with language or symbols that are sexually offensive 0 Domain names 0 Federal Trademark Dilution Act Allows an owner of a famous and distinctive mark to obtain an injunction and in some cases damages for any quotcommercial use of the mark that causes dilution of a distinctive quality of the mark 0 Anti cybersquatting consumer protection act created a new cause of action against bad faith registration of domain names that violate a plaintiff s trademark Provides remedies that involve the transfer or cancellation of domain name and civil penalties o lCANN Internet Corporation for Assigned Names and Numbers Complaining parties must show that o A name is identical or confusingly similar to the registrants trademark or service 0 The registrant has no legitimate rights or interest in the domain name 0 The name was registered and continued to be used in bad faith 0 Metatags Using words in the webpage coding Comes up with searches 0 Cases 0 Gulf Coast Bank v 3qu Coast Bank amp Trust Plaintiff created first Since its terms are generic there must be a secondary meaning Remanded for hearing 0 Seafood Restaurant Services v Bonannos Drusilla Seafood amp Pasta Also case of generic terms quotDrusilla seafood went bankrupt and was bought The original owners wanted to build a new restaurant called Bonanno s Drusilla Seafood Drusillas Seafood Had established a secondary meaning Judgment of trial court is affirm cost of this appeal go to Bonanno amp Professional Seafood Mgmt o lnka s S Cool Wear v School Time Trial court held that 1 plaintiff didn t have a proprietary interest in the name S Cool Wear thereby establishing trade name infringement 2 defendant s actions didn t constitute tortuous interference with a contract due to its prior contractual agreement 3 defendant s exclusive contract with the garment manufacturer didn t constitute unfair trade practices Appellate court affirmed School Time added quotschool wear to its name lnka s sued Courts decided that the name quots coolwearquot as used by the appellant is not distinctive but it did acquire secondary meaning 0 UGA v Laite Laite began marketing quotBattlin Bulldog Beer that was sold in red and black cans with a bulldog holding a football UGA got an injunction against the beer 0 Guillot v Wagner Acquiring pageant names lssue was if there would be confusion Trial judge granted the defendant s motion for summary judgment Affirmed by the appellate court 0 Parody 0 Nike v Just Did lt Remanded back to trial court for jury determination Copyrights Protects the original expression of ideas A person who creates an original work in tangible form obtains a copyright Books music movies and tv are the most commonly copyrighted works 0 Direct the exclusive rights of the copyright holder must be violated Secondary applied in case where the defendant was not personally involved in the infringing activity but still shares in the liability O I Contributory the infringer has knowledge and induces or causes the infringing conduct of another I Vicarious When the defendant has the right and ability to control or police the infringer s acts 0 Fair Use Created to allow such things as commentary parody news reporting research and education about copyright works without the permission of the author 0 Napster Lost to RIAA 0 Software Piracy Software is copyrighted 0 Unusual copyrights parade floats wedding dresses Privacy The right of publicity The right to control and profit from the use of one s name and likeness Corporate Sponsorship and Ambush Marketing Corporate sponsorship is any type of arrangement in which a company provides money goods or services to an event in order to associate with the event Ambush Marketing is the term used to describe the attempts by non sponsoring companies to obtain an unauthorized associated with the event Chapter 5 AgencyMandate 0 Agency A legal relationship between two parties principal and agent The agent is authorized to speak and act on behalf of the principal These actions are legally binding on the principal if within the scope of the agent s authority with respect to 3rd parties who relied on the agent s authority This is consensual and doesn t have to meet the consideration requirements of a contract Most require contracts to provide the agent with compensation for acting on behalf of the principal An agency can be created by written or verbal authorization and sometimes by contact 0 Disclosed Agency An agent will inform a third party that he is acting as an agent and will identify his principal o Partially Disclosed Agency An agent advises a 3rd party that he is an agent but doesn t reveal his principal o Undisclosed Agency The agent doesn t reveal his principal or his agency status I In Partially Disclosed and Undisclosed the agency may be liable to the 3rd party on contract The principal could enforce a contract made by its agent even if the third party was unaware of the agency relationship 0 Existence and Scope of Agency An agency agreement doesn t have to be written but it should be Written documents can reduce potential disagreements among the agent principal and third party Any modifications to a contract should also be in writing 0 The use of agents to form contractual relations is common in business Agency questions also arise in disputes involving torts If an agent commits a tort and injures a 3rd party in the course and scope of the agent relationship the principal may also be liable to the third party I Hanson v Kynast Kynast threw Hanson off of his back during a lacrosse game Hanson sustained serious injuries Kynast played for Ashland Hanson played for OSU Hanson filed suit against Kynast and Ashland Kynast maintained that Hanson acted as an agent of Ashland Courts decided that he wasn t an agent of Ashland Decided that there was not a agentprincipal relationship between Kynast and Ashland o Mandate an act by which one person gives power to another to transact fro him and in his name 0 Creation of agency 0 Express authority specific written or oral authorization is given to the agent by the principal o lmplied authority The principal authorizes the agent to act on the principals behalf through conduct 0 Apparent authority the principal does not intend for the agent to have authority but the principals conduct leads third person to believe the agent does in fact have authority on behalf of the principal o In a normal agency relationship the contract would be between the third party and the principal the agent would have no liability with respect to the performance of the contract 0 Independent Fire lns Hebert v Able moving Bekins ABC lnsTria court found against Bekins It was reversed on appeal they concluded that Bekins didn t have control over Able employees Supreme court reversed the appellate court s decision and found that Bekins was responsible o Emporia Holding v City of New Orleans Trial court four that the lease wasn t renewed Final court agreed Found in favor of the City of New Orleans Most franchise agreements state that the franchisee is an independent contractor not an agent or employee of the franchisor The franchisor is required to exercise control over the quantity of goods and services sold under its mark and failure to do so would risk losing the good will associated with its mark or be deemed to have abandoned the mark Chapter 6 Insurance An insurance contract is an agreement between two or more parties in which one party insured pays a price premium to another party insurer The insurer agrees to pay the insured a sum of money in the event of certain occurrences defined in the policy which result in a loss to the insured It is a business approach to spread the risk of loss with respect to uncertain or unforeseen events Concept is that loss with happen to a small number of the people in a group The purpose is to offset the insured s loss due to the insured event Common terms 0 lnsured the person or entity who is covered or protected by the insurance policy 0 lnsurer the company which provides the insurance Liability lnsurance lnsurance protection for the insured with respect to claims made by third parties against the insured 0 Policy Limits The maximum amount that the insurer is required to pay for a particular loss In addition the insurer may be required to pay legal interest attorney s fees and court costs 0 Deductible An amount an insured must pay or loose before the insurer will pay on the policy 0 Coinsurance This phrase is similar to a deductible It generally means that the insured is covering some of the risk of loss unless the loss is total 0 Exclusions Provisions in a policy which specifically state that the insurer will not cover a particular loss described by the exclusion language 0 Endorsement Written provisions added to the standard policy The endorsements may add to or delete from the coverage described in the standard policy lnsurable lnterest An interest that the law requires to exist in order for an insured or beneficiary to recover on a policy 0 Omnibus Clause Used in most auto policies and provides that the policy also protects those who are using the vehicle with the express or implied permission of the named insured o Binder A temporary agreement which provides insurance coverage until the actual policy is approved and executed The Insurance Contract The insurance agreement is reflected in the insurance policy which is the contract between the parties Contract law provides that parties may agree to any terms or conditions that don t violate laws or public policy lnsurance contracts are required to be in writing They also must be approved by the Commissioner of Insurance Modifications to the policy must also be physically attached to the policy If something is unclear the ruling will be against the party who wrote the contract Favors the insured Different policies from different companies will be worded in similar or identical language Oral representations by insurance representatives don t form part of the insurance policy They may form a basis for a separate cause of action against the agent though Automobile Insurance 0 Liability lnsurance Protects the insured from a liability claim by a third person The third party claim would be based on the alleged negligence or fault of the insured which has caused the third party property or physical damage Doesn t compensate the insured for any loss Minimum is 102010 10000 for personal injury of the 3rd party if it is one person 20000 total for the personal injury of the 3rd party if more than one person is in the car 10000 limit for property damage the car 0 O Compulsory Liability Insurance Law Requires that vehicle owners maintain liability insurance with minimum limits of 102010 Failure to maintain can result in criminal actions against the owner Persons and Vehicles lnsured 0 Most private auto policies define the insured as o The named insured on the policy and spouse 0 Family members who are residents of the named insured s household 0 Persons who are driving the covered vehicle with the permission of the named insured and to some extent with the permission of the insured s spouse and family omnibus clause Liability protection is only provided for the vehicles listed on the policy The named insured are generally still covered while operating other vehicles if the vehicles are not owned by the family The vehicles typically insured by the policy are 0 The owned vehicles listed in the policy 0 Vehicles which are being used as a temporary substitute 0 Vehicles acquired during the policy term Usually the policy will require notification of the newly acquired car within thirty days of its purchase 0 Nonowned vehicles which are not available for regular use and which are being driven with permission of the owner Safeway lns V State Farm Mutual Baines borrowed Holloways vehicle Holloway was insured by Safeway Baines was insured by State Farm Baines hit a child with the car Safeway paid the child s parents for injuries Safeway filed a petition against State Farm asserting that the State Farm policy provided primary liability coverage Court ruled in favor of Safeway Appellate upholds the decision in favor of Safeway Exclusions Situations that will not be covered by the policy Some common exclusions 0 Automobile business exclusion This is to exclude coverage if the auto is being used in the automobile or public conveyance business 0 Nonowned autos being used for business purposes 0 The policy may have exclusion for a specific driver Farm Bureau v Darjean Darjean was delivering a car owned by Costello when he hit a vehicle owned by Orgeron Costello had Southern lns Darjean had American lns Orgeron had Farm Bureau lns Farm Bureau paid the damages to the Orgeron vehicle Farm Bureau tried to collect from Southern and American They voluntarily dismissed the case On appeal the case was remanded for further proceedings Mayfield v lmperial Fire Mayfield was a passenger in a car when it was struck by Reedom Reedom was driving his own car to deliver pizzas for Domino s Mayfield sued Reedom and Reedom s insurer Domino s and National lns Courts concluded that the exclusion by Imperial to cover this incident was enforceable Manley v Alphonso and Progressive lns Manley was insured in an accident He was struck by Alphonso s minor son They were insured by Progressive Progressive moved for summary judgment based on the fact that the son was a minor and thus excluded from coverage Exclusion specifically excludes the son driver Trial court found they couldn t sue the son but they could sue Progressive Duty to DefendSettle Excess Liability Every motor vehicle liability policy will require the insurer to defend the insured in the event a claim is made This allows the insurer to select an attorney and handle the litigation If the claim doesn t exceed policy limits the insurer will be responsible for the full payment Duty to defend also requires the insurer to pay the attorney fees The insured can choose to retain his own counsel at her own expense 0 Uninsured Motorist Coverage ls designed to compensate the insured for her own damages as a result of the negligence or fault of a third party who is uninsured or underinsured UM is not legally required 0 CollisionProperty lnsurance Collision insurance is to pay for the damage which occurs to the insured s vehicle It is for the benefit of the insured not a third party Fault of negligence is not an issue If the loss was the fault of a 3rd party the insurer would pay the insured then sue the 3rd party for recovery 0 Medical Payments This insurance provides for payment to the insured and his family in any car and occupants of the insured s car for medical expenses incurred as a result of auto related injuries Fault or negligence isn t an issue 0 Comprehensive Automobile Coverage Will often include the collision insurance as well as property damage or loss regarding the insured auto for occurrences not related to the use of the vehicle such as fire flood or theft 0 Homeowner s lnsurance Policy offers protection to the insured for liability claims by third parties and for property loss sustained by the insured 0 Liability lnsured persons are usually the named insured and the residents of the household Designed to protect the insured from claims which arise as a result of bodily or property damage to 3rd parties not the insured If the insured accidently hurts a 3rd party then the insurance would cover it I Exclusions lntentional acts Use of cars boats recreational vehicles ultralights etc Acts arising from other premises Damage to the insured Flood damage 0 Property coverage Provides coverage for property loss to the insured and medical payments Usually addresses loss resulting from fire theft or severe weather but not flooding Separate flood insurance may be required Umbrella Coverage Designed to cover liability exposure which may exceed the policy limits of the auto or homeowner policy May also cover liability that would not be covered by the auto or homeowners policies Health amp AccidentHospitalization lnsurance Provides protection for the insured with respect to medical and hospital expenses Usually a policy covers a group of people and is usually obtained by an employer 0 Life Insurance 0 An insured This is the person whose life is being insured o The beneficiary This is the person who is listed on the policy as being entitled to the proceeds of the policy upon the death of the insured O O O O O The owner of the policy This is the person who is described as the owner on the policy Usually the insured The owner has the right to change the beneficiary The owner can also borrow against the policy or obtain the policy s cash surrender value lnsurable lnterest In order to have a lawful life insurance policy planed on the life of a person an insurable interest must exist Prevents life insurance from becoming a business A person or entity can be a beneficiary Exclusions Usually deny payment if the death is a suicide within 2 years of getting the policy Also can deny payment if the health of the insured was misrepresented on the application Community Property Married couples are subject to laws of community property Community property laws provide that property acquired during the marriage belongs to the community Life insurance proceeds are not part of the community The proceeds go to the beneficiary Viatical Settlement act llviatical broker will buy for himself or another person a life insurance policy from someone who is expected to die with the foreseeable future The insured gets the benefit of sale proceeds while alive and the purchaser obtains the profit at the death Before executing the contract the insured must be advised of the following I Alternatives I Tax consequences I Creditors rights to proceeds I Right to rescind within 30 days of signing or 15 days from the receipt of funds A written statement from a doctor must be obtained as to the competency of the insured


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