Search

The article discusses the case of Ndambi v. CoreCivic, Inc.,topics include where the Fourth Circuit upheld that detained immigrant workers are not considered "employees" under the Fair Labor Standards Act (FLSA). The court's decision ignored the changing landscape of immigration detention, which has become largely privatized and for-profit, and conflicted with the FLSA's goals of protecting worker welfare and industries from unfair competition. .

Both trademark and unfair competition laws and state right of publicity laws protect against unauthorized uses of a person’s identity. Increasingly, however, these rights are working at odds with one another and can point in different directions with regard to who controls a person’s name, likeness, and broader indicia of identity. This creates what I call an “identity thicket” of overlapping and conflicting rights over a person’s identity. Current jurisprudence provides little to no guidance on the most basic questions surrounding this thicket, such as what right to use a person’s identity, if any, flows from the transfer of marks that incorporate indicia of a person’s identity, and whether such transfers can empower a successor company to bar a person from using their own identity, and, if so, when. Part of the challenge for mediating these disputes is that both right of publicity and trademark laws are commonly thought of as concerned solely with market-based interests. But this is not the case. As I have documented elsewhere, the right of publicity has long been directed at protecting both the economic and the noneconomic interests of identity- holders. And, as I demonstrate here, it turns out that the same is true for trademark and unfair competition laws, which have long protected a person’s autonomy and dignity interests as well as their market-based ones. After documenting and developing this overlooked aspect of trademark law, I suggest a number of broader insights of this more robust account of trademark law both for addressing the identity thicket and for trademark law more generally. First, I suggest that recognizing a personality-based facet of trademark law suggests a basis to limit the alienation of personal marks in some contexts. Second, this understanding shores up trademark’s negative spaces, especially when truthful information is at issue. Third, recognizing trademark’s personality-based interests provides a partial explanation (and limiting principle) for some of its expansionist impulses. Finally, I contend that recognizing this broader vision of trademark law provides significant guidance as to how to navigate the identity thicket. I employ trademark preemption analysis to mediate disputes between trademark and right of publicity laws. Trademark preemption provides an avenue out of the thicket, but only if trademark law’s robust theory of personality is recognized. A failure to do so risks leaving us with one of two bad options: a right of publicity that acts as a “mutant” trademark law, swallowing up and obstructing legitimate rights to use trademarks, or, alternatively, with a shallow husk of trademark law (rooted solely in commercial interests) that swallows up publicity claims at the expense of personal autonomy and dignity. Trademark law already provides us with the tools to avoid both of these unsavory paths — if only we reclaim its lost personality. [ABSTRACT FROM AUTHOR]

Copyright law's principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright's exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system's benefits against its costs. Yet, none of copyright's current doctrines enable courts to circumscribe a creator's entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in certain ways, it recognizes that its incentive structure has outer limits and that failing to calibrate an entitlement or liability with these limits in mind is likely to prove inefficient. The principal mechanism that it employs to this end is the concept of foreseeability. Premised on the idea that individuals do not ordinarily consider consequences that are temporally or causally far removed from their actions, foreseeability allows courts to balance a regime's ex ante incentive effects against its ex post costs when determining liability. This Article argues that if copyright law is to remain true to its theory of incentives, and thereby the need to balance monopoly control with the social costs that are central to the theory, it needs to internalize the idea that creators, like actors elsewhere, are incapable of fully anticipating all future contingencies associated with their actions, which in turn limits the effectiveness of incentives. To this end, this Article proposes a test of "foreseeable copying" to limit copyright's grant of exclusivity to situations where a copier's use was reasonably foreseeable at the time of creation - the point when the incentive is meant to operate. Adopting a test of foreseeability is thus likely to better align copyright law with its underlying purpose and provide courts with a mechanism by which to give effect to copyright's theory of incentives in individual cases - thereby according the theory more than just rhetorical significance. [ABSTRACT FROM AUTHOR]

Examines laws governing restricted channels of distribution under the Sherman Act in the U.S. Types of contractual agreements in trade and commerce; Federal cases and decisions; Interbrand competition; Exclusive franchises; Territorial restrictions; Commercial law.

Examines the definition of agreement under the Sherman Act in the U.S. focusing on the provisions relating to conscious parallelism and refusals to deal in trade and commerce. Antitrust and illegality issues; Existence of an agreement to restrain trade; Desirability of an inclusive concept of agreement; Antitrust law. OF AMERICANS

Discusses the competitive amendment in the antitrust law under the Robinson-Patman Act. Section 2(a) of the Clayton Act as amended by the Robinson-Patman Act; Problems of interpretation; Social benefits of profit-maximizing discrimination; Second Circuit's ruling that a price reduction by the American Tobacco Co. in Puerto Rico was a violation of the law.

The article focuses on the 1958 case State Wholesale Grocers v. Great Atlantic & Pacific Tea Co., which was registered under the Robinson-Patman Act of restraint of trade law. It was a case of violation of section 2(d) of the act, which relates to advertisements by suppliers in national magazine distributed exclusively by customer. The defendant, suppliers of Atlantic & Pacific (A&P) advertised their products in "Woman's Day, a magazine published by a wholly-owned subsidiary of A&P. In all but one state the magazine was distributed exclusively through A&P stores. The advertisements, identical to those appearing in other national magazines, made no specific reference to the fact that the products were on sale in A&P.

Focuses on the extra territorial application of the antitrust laws. Details of the "United States V. Imperial Chemical Industries, Ltd.," an antitrust suit brought against Du Pont; View of the foreign elements involved in particular activities; Contention of the advocates of a strict territorial concept of international law that the antitrust statutes should be construed as applicable only to those violations occurring within the United States.

Discusses the common-law copyright and unfair competition case of Capitol Records Inc. v. Mercury Records Corp. Background of the case; Court of Appeals for the Second Circuit's claim that defendant, Mercury has secured no rights for the United States through the grant from Gramophone; Authority of the U.S. Congress under the copyright clause.

Discusses the legal issues in the United States regarding the protection of literary and cartoon characters through trademark, unfair competition and copyright. Increase in the likelihood of misappropriation of characters such as the Lone Ranger; Legal protection for the author seeking protection for literary and cartoon characters; Courts' use of the methods of trademark, unfair competition and copyright.

This article presents information on legal notes related to cases in the U.S. Proof of Cost Differentials Under the Robinson-Patman Act discusses a seller who discriminates in price among his customers and may justify the discrimination by showing that it makes "only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered." The Robinson-Patman Act creates a private cause of action and the injured party is entitled to treble damages as under the other antitrust laws. It was not until 1949, however, that any extensive cost defense was attempted.

This article presents information on developments in the field of law. The activity of each trade association is so closely adapted to the particular needs of its industry that generalization and comparison are difficult. Among the most common activities are the recommendation of standard contract forms and uniform cost-accounting procedures adapted to the needs of the particular industry. The inadequacies and uncertainties of commercial law have created a need for agreement of the parties on specific contractual terms.

This article focuses on the price restriction on the re-sale of chattles. At common law limited restrictions as an incident to the sale of chattels are permissible. The accepted test is that such restrictions must not be wider than the protection of the parties thereto demands nor so wide as to affect the public injuriously. Thus a single contract determining the price of the re-sale of chattels, not dealing with all or a material portion of all such chattels in commerce, might, if conditions warranted it, be lawful. This common law principle is not peculiar to "trade-secret" articles but is equally applicable to any chattel property. Until recently, however, the doctrine was generally accepted that the owner of "trade-secret" articles had special rights to impose restrictions upon the re-sale of his products. The acceptance of this doctrine result!ed both from an apparent similarity between the conditions surrounding articles manufactured under trade secrets and those manufactured under patents, and from an apparent analogy between contracts relating to the sale of such articles and contracts relating to the sale of inventions, compositions, railroad tickets, trading stamps, and trade secrets themselves.

The article focuses on the rights of the legislatures of the several states and the Congress of the United States in the regulation of contracts, combinations, conspiracies, and monopolies in restraint of trade and commerce. It has been affirmed that an amendment to the Constitution of the United States is necessary in order to vest in the U.S. Congress the requisite power to enable it to deal with the subject. The article demonstrate that there is already existing in Congress a large and extensive power, which it is believed is sufficient without the amendment proposed, and, further, to define the extent of that power.

Focuses on decision of the U.S. Circuit Court of Appeals in the Northern Securities case. Facts of the case; Analysis on provisions of restraint of trade; Assessment on laws governing freedom of trade.

This article focuses on fraud as an unfair competition. No branch of the law has undergone a more interesting development within the past fifty years than that which deals with the subject of unfair competition. The proposition that nobody has any right to represent his goods as the goods of somebody else has been adopted as the basis of all the recent decisions' in England dealing with the passing off of one trader's wares as those of another. It is thoroughly consistent and equitable, that a defendant who cannot set up absence of a fraudulent intent as a bar to an injunction, should be nevertheless allowed to prove it in exemption from damages or an accounting.

This article discusses various issues related to unfair competition by the deceptive use of business names, and trademarks. The protection of manufacturers of established reputation against unfair competition is a branch of the law which has developed rapidly during recent years. It is suggested by the legal authorities that a new manufacturer must so differentiate his goods from the original that they will not deceive, or, at least, must make reasonable efforts to diminish the deception which will naturally follow from the similarity of name.

The article reports on the constitutionality of the Sherman anti-trust act of 1890. The decision of the Supreme Court of the United States in the case of the Trans-Missouri Traffic Association for the first time authoritatively declares the intended scope of the provisions of the so called Anti-Trust Act of 1890. In view of such interpretation of the statute, it is now the legal presumption that it was the intention of Congress to prohibit and render criminal every contract in restraint of trade or commerce among the several States or with foreign nations.

Examines the cases involving unfair competition in the United States. Law of trade marks; Typical cases of unfair competition such as "Knott v. Morgan"; "Hennessy v. Hogan"; Notion of property in good will and the constituent parts of good will; Attempt by a person to appropriate to himself the benefit of some one or another of the constituent parts that go to make up the good will of a business.

Examines the notion of monopoly under the Anti-Trust Act, passed by the United States Congress on July 2, 1890. Interpretation of the statute in the light of the common law; Definition of a monopoly; Engrossing; Results of leading decisions regarding monopoly; Indefinite increase of business; Fixing of arbitrary prices; Agreement not to trade with any one who trades with others than the convenantors.

Comments on the proposal of the United States Supreme Court to prevent unfair competition in business. Implementation of a copyright act; Offer of privileges to the foreign yagabond; Direction of enlightened thought to promote the intellectual and ethical progress of the nation.

Focuses on the choice of law in multistate unfair competition in the U.S. Impact of the growing complexity of product distribution on the common law tort of unfair competition; Role of the uniformity of substantive law in the oldest segment of unfair competition on the diversity of substantive rules; Influence of unfair competition to the requirement of examination and application of the law of every state.

The article presents various court cases related to mass media in the U.S. In a society which has repeatedly dedicated itself to the proposition that its social and economic salvation lies in competition, it remains a perennial source of wonder that the desirable and undesirable aspects of competition have never been precisely defined. The most important exception occurred twenty-four years ago, when the Supreme Court of the United States handed down its decision in International News Service v. Associated Press.

Discusses several U.S. court cases as of March 1941. Court case on the delegation of authority to prescribe a Fair Trade Code; Fair hearing on the unconstitutional statute of a milk marketing board due to members' pecuniary interest in price-setting; Claim for value of goods purchased without intention of paying.

Discusses the factors that influence courts to refuse to act on legal actions relating to unfair competition. Review of judicial decisions and legal opinion on the subject matter; Reluctance of courts to recognize the use of trademarks in commerce; Consideration for the scope of protection, policies against monopolies, the management of trade practices by administrative agencies, and the policy in favor of centralizing the protection of morality in government.

Discusses the enactment of the Fair Trade legislation in the U.S. Economic groups which waged the legalization of the resale price maintenance; Constitutionality of the Act; Commodities which may be subjected to a resale price restriction.

Examines some legislations in the United States. Purpose of Fair Trade Legislation; Provisions of Sherman Anti-trust Act; Focus of Fair Trade acts in legalizing contract with restraints upon reselling.

The article reports on some recent developments in legal arena of the United States. The article further explains some attributes of "Trust," by referring the case of Hise v. Grasty. Within the facts of the case an inventor of a collapsible bed had it patented in the name of his son, who agreed to hold the patent for him. A patent not taken out in the name of the inventor is void. By a joint conveyance, the patent was sold to a manufacturer and the proceeds invested in real estate. Upon the inventor's adjudication in bankruptcy, his trustee sought to apply the land to payment of his debts. The court, denying the claim, held that since a void patent could not be the subject of a trust, no trust of the proceeds could arise. Clearly a trust may attach only to property in existence and of economic value. But a trade secret may be the subject of a trust, and can pass to a trustee in bankruptcy. Similarly, a secret invention, although unpatented, seems capable of being held in trust. But the court apparently considered that nothing besides the void patent was given, so that no trust arose because no property interest was conveyed. Assuming this, it does not follow that the property received in exchange for the void patent may not be impressed with a trust.

Focuses on the laws regarding the establishment of business enterprises. Implementation of the Federal Trade Commission Act; Assessment on the prevention of unfair competition before the depression; Development and enforcement of the codes of fair competition.

Presents news and developments in law and legislation in the U.S. compiled as of May 1933. Presumption and burden of proof; Constitutionality of statutory presumptions; Privilege and competency of witnesses; Examination of witnesses; Unfair competition.

This article discusses the legality of price-fixing agreements in businesses under the Sherman Act of the U.S., by illustrating some of the related cases. The American Hardwood Manufacturers' Association, for instance, was an unincorporated organization comprising one-third of the hardwood producers in the U.S. The association distributed information among the members on production cost, volume of production, and volume of orders. According to finding of the U.S. Supreme Court, these competitors also agreed on their prices. The Court held that such an agreement was an unreasonable restraint of trade which violated the Sherman Act. In the case related to anti-trust law, "Standard Oil Co. versus United States," the Chief Justice of the U.S. found that Congress intended to prevent monopoly and the resulting evils of undue enhancement of price, detrimental limitation of production, and inferior output and service. In consolidation cases, the rule of reason, suggestively, relates primarily to the extent and kind of restraint which the combination imposes upon an industry. The same test is suggested to be applied to a group that fixes prices or controls production.

Examines the tort of unfair competition in light of a Texas case in which a selling device was found to be a violation of the anti-lottery statute. Tendency on the part of both the legislature and the judiciary to denounce and suppress unfair forms of trade rivalry; Privilege of free competition as enunciated by Justice Oliver Wendell Holmes; Reasons of policy weighing against the granting of an injunction.

Considers the common-law rules governing market conduct in the U.S. Doctrine of contracts in retraint of trade; Doctrine of conspiracy to monopolize; Doctrine of unfair competition; Background on the Sherman Act designed to prevent industrial combination.

This article presents information on contracts and its obligations. A contract not to engage in a given business or occupation would be void where the promisor was already engaged in it, and the promisee was not and did not intend to be. The reasons alleged were, the disregard of the social interest in the freedom of individuals to enter whatever business they pleased, the mischief to the party by the loss of his livelihood and the subsistence of his family, the mischief to the public by depriving it of a useful member; and the tendency toward monopoly. The last would seem to be negligible. Today, such is the freedom and ease of transportation and of entering other occupations and businesses that the danger of the loss of livelihood and subsistence for a family is not such as to cause great concern.

Explores cases related to the relation of technical trademark to the law of unfair competition in the U.S. in 1916. Development of the law relating to infringements of technical trademarks; Cases wherein the U.S. Supreme Court set territorial limits on the right in a trademark; Presentation of the law of unfair competition in the case Hamilton-Brown Shoe Co. v. Wolf Brothers & Co.

The article presents information on the trademark infringement. The designation "unfair competition" or "unfair trade" seems to have been adopted as a convenient description of offences against commercial morals not included in trademark infringement. It was for many years assumed that unless a technical trademark was violated, no relief could be had. It was soon demonstrated that the acceptance of any such rule opened the door to all manner of commercial knavery, and at an early day judges with consciences and a proper sense of sportsmanship began to decide cases in favor of the complainant which were in no sense trade mark cases, but where the defendant's conduct involved precisely the same wrong--the sale of one trader's goods as those of another.

Reports on the enactment of Fair Trade Act to replace a statue held unconstitutional by Supreme Court in Florida. Authorization for the attorney general to restrain the performance of enforcement of any resale price maintenance contract if he deems that the contract prevents competition in the new law; Question on the impact of the powers given to the attorney general by the new statute on the operation of fair trade; Criticism on the clause included in the statute on the powers of the attorney general.

The article discusses on the book "Is a Contract in Restraint of Trade Sustainable As an Independent Contract?" by Frederick H. Cooke. The author contends that only such restraints should be sanctioned as are incidental to a larger contract, as of sale or employment. He argues that the reason for the general rule invalidating agreements in restraint of trade is the evil produced by the withdrawal of a capable member of society from active production that this evil may at times be tolerated when, by the transfer of business, another member of society is given the opportunity, new or enlarged, of engaging in the same line of activity, but not otherwise that the independent contract involves no such transfer, and consequently is not to be sustained.

Presents the ruling on the case Paramount Pictures Inc. versus Langer which deals with restraint of trade and antitrust law. Facts of the case; Arguments of the parties to the case; Citation of related cases.

Focuses on compulsory sales and public policy. Idea behind social compulsion; Solution to the problem of price cutting.

Presents a response by the author Charles Bunn to a letter to the editor about his article on the enactment of a federal law of unfair competition.