Can “Crunchy” get trademark protection? Crunchy How about the particular way it appears on the bag?

Transcript Can “Crunchy” get trademark protection? Crunchy How about the particular way it appears on the bag?

Can “Crunchy” get trademark protection?

Crunchy How about the particular way it appears on the bag?

   Devices (that can take nearly any form) that distinguish or identify a particular good or service Slogans, logos, words, pictures, and combinations of words and pictures are all familiar “devices.” Sounds, scents and colors can also be devices in certain circumstances © 2005 West Legal Studies in Business A Division of Thomson Learning

    There are 5 categories of distinctiveness Marks that are

fanciful

arbitrary

suggestive

can be trademarks Marks that are merely

descriptive

can be trademarks only if they have acquired “secondary meaning” Marks that are

generic

Weak

Generic Descriptive Suggestive Arbitrary

Strong

Fanciful

Mark-o-meter

    Does the mark requires you to employ some imagination, thought or perception in order to connect the mark to the product?

If not, then it’s merely descriptive “Secondary Meaning” can support a mark that merely describes its product or service. Surnames are treated the same as merely descriptive marks; they can be trademarks if secondary meaning has been achieved © 2005 West Legal Studies in Business A Division of Thomson Learning

  This means that the marketplace recognizes the goods or services as being those of a particular provider even though the mark describes the product and even though there may be many providers of that product Digital Computers is an example; McDonalds hamburgers are another © 2005 West Legal Studies in Business A Division of Thomson Learning

Crunchy

How about this?

Krunchee! TM

Will this work?

Krunchee! TM Probably not…what if you advertised on the radio?

That was pretty amateurish. Any other bright ideas?

Inspiration!

Duck!

TM Notice of trademark claim to “Duck!”

     You can use nationally, not just in the area where your product is marketed Better legal remedies in case of infringement Right to use the

®

symbol Incontestible status after 5 years, eliminating most challenges to your exclusive use of mark Easier for others to search, so they can avoid adopting confusingly similar marks © 2005 West Legal Studies in Business A Division of Thomson Learning

United States Patent & Trademark Office NOTICE OF REGISTRATION Principal Register Duck!

Dear Chipco: Congratulations, your trademark has been entered on the principal register. Go out and build brand.

Love, The Government

Duck!

® “Duck!” is a registered trademark!

    Copyright protects a fixed original expression “Fixed” is a very general term – includes computer memory or back of a napkin “Original” means independent creation, even if lacking in quality or merit. Not copied Creative effort is required. Can be bad, and doesn’t have to be much, but some minimal level of creative effort is required for copyright protection.

    Copyright does not protect ideas or facts Copyright gives you the exclusive right to reproduce, distribute, create adaptations of, perform or display the particular expression or “work” Can be registered, and benefits are better legal remedies to protect the copyright Registration is cheap, no search is required, and can be done by anyone © 2005 West Legal Studies in Business A Division of Thomson Learning

    General Rule now: Author’s life plus 70 years if the author owns it; if for hire, between 95 and 120 years depending on when published No © is required since March 1, 1989; earlier it was generally required Works created before 1923 are all in the public domain Best policy is to seek permission © 2005 West Legal Studies in Business A Division of Thomson Learning

     Easy and cheap Necessary to enforce in court If done promptly enough, you may have a statutory damage remedy You don’t have to scramble around trying to register after you discover an infringer just so you can take them to court Cheap insurance © 2005 West Legal Studies in Business A Division of Thomson Learning

   Definition: Property consists of legally protected rights and interests a person has in anything with an ascertainable value that is subject to ownership.

 Difference Between Real and Personal Property.

 Ownership rights in each.

Acquiring Ownership of Personal Property.

Laws Governing Mislaid, Lost, or Abandoned Property.

 Property ownership is viewed as a “bundle of rights”, including the:  Right to possess.

 Right to sell.

 Right to give.

 Right to lease.

 Right to destroy.

   Owns the entire “bundle of rights”.

Fee simple gives the owner the maximum possible estate or right of ownership of real property, continuing forever. Chapter 37 will deal with realty estates.

Tenancy in common (Fig. 1). A and B own an undivided interest in the property. Upon B’s death interest passes to B’s heir, “C”.

Joint Tenancy (Fig. 2). A and B own an undivided interest in property but, upon B’s death, B’s interest passes to A, the surviving joint tenant.

Fig. 2

 Tenancy by the Entirety (not common)  Usually between husband and wife.

 Community Property (limited # of states)  Property acquired by couple during their marriage is owned as an undivided ½ interest in property (real and personal).

  Possession.

 Capture of wild animals (wild animals belong to no one).

 Finding of abandoned property.

 Adverse Possession.

Production.

 Writers, inventors, manufacturers, and others who produce personal property acquire title to it.

  Voluntary transfer of property ownership from Donor (owner) to Donee (recipient) for no consideration.

Three types  Intervivos—while donor is living.

 Causa Mortis: -- made by donor in contemplation of imminent death.

 Testamentary – after death, by will/inheritance.



Three requirements for valid gift:

 Delivery—actual or “constructive” (symbolic, such as keys to car). ▪ Donor must give up complete control or dominion. Delivery by a 3 rd party is OK.

▪ In re Estate of Piper (1984).

 Donative intent on the part of the donor  Acceptance by the Donee.

   Will or Inheritance.

Accession.

 Someone adds value to a piece of personal property by use of either labor or materials.

Confusion.

 Commingling so that a person’s personal property cannot be distinguished from another’s.

 Fungible goods consists of identical particles such as oil or grain.

   Mislaid Property: true owner.

Voluntary placed somewhere, then inadvertently forgotten. Finder is steward for Lost Property: for conversion.

Involuntarily left. Property owner acquires title against whole world, except for true owner. Finder must return to true owner or be liable Abandoned Property: Discarded by true owner with no intention of recovering. Acquires title against all the world, including the original owner.

  A bailment is formed by the delivery of personal property, without transfer of title, by one person (Bailor) to another (Bailee), usually under an agreement for a particular purpose. The property must be returned by the Bailee to the Bailor, or a third party as directed by the Bailor, in the same or better condition. © 2005 West Legal Studies in Business A Division of Thomson Learning

   Personal Property. (Tangible or Intangible- but not persons or realty.) Delivery of Possession.

 Bailee given exclusive control or possession.

  Bailee must knowingly accept (Bailee must intend to exercise control over chattel).

Bailment Agreement.

 May be actual or constructive.

   Bailment for the sole benefit of the Bailor:  A gratuitous Bailment; Bailee owes Bailor a low duty of care, liable only for gross negligence.

Bailment for the sole benefit of the Bailee:  Bailee owes Bailor a high duty of care and is liable for even slight negligence.

Mutual Benefit Bailment: most common.  Each party owes the other a reasonable duty of care.

     Right To Possess.

 Bailee may acquire or use property temporarily. Title does not pass.

Right to Use Bailed Property. Rights of Compensation.

 Reimbursed for costs or services as provided in the agreement.

Right to Limit Liability.

     Right to have property protected and used as agreed.

Right to have property back at end of bailment with service or repair done properly.

Right to have the Bailee not convert.

Right to not be bound to limitation of liability unless Bailor knows.

Duty to Provide safe goods:  Mutual Benefit Bailment: free from known or hidden defects; Sole Benefit of Bailee: notify if any known defect.

 Common Carriers:  Publicly licenses to provide transportation services to general public.  Common Carriers are strictly liable for damages except if the damages caused by: ▪ An act of God.

▪ An act of the public enemy.

▪ An order of the public authority.

▪ An act of the shipper.

▪ The inherent nature of the goods.

 Shipper’s loss.

 Connecting Carriers.

  Warehouses:  Owe duty of reasonable care.

 Can’t exculpate, can limit.

Innkeepers:  Owe duty of strict liability, modified by state statutes; if innkeeper provides safe and notifies guests.

 If parking area provided and innkeeper accepts bailment, then may be liable.

 Real property is immovable and includes:  Land.

 Buildings.

 Airspace.

 Plant Life and Vegetation.

 Subsurface (mineral) rights.

 A fixture is personal property that becomes permanently affixed to real property.

 Intent that it become a fixture is necessary.

 Intent is determined by: ▪ The fact that the property cannot be removed without causing damage to the realty.

▪ The fact that the property is so adapted to the realty that it has become part of the realty.

▪ In re Sand & Sage Farm & Ranch, Inc. (2001).

  Trade fixtures: installed for commercial purposes by a tenant.

They remain the property of the tenant and can be removed when tenant leaves, repairing any damage caused by removal.

Ownership interests are classified as either Possessory or Non-Possessory:

▪ A Possessory interest such as a fee simple, life or leasehold estate, gives the owner a right to possess the land. ▪ A Nonpossessory interest such as an easement, profit or license, does not give the owner a right to possess the land. © 2005 West Legal Studies in Business A Division of Thomson Learning 40

Financial Advisors, Inc., signs a lease for the first floor of an office building owned by Goodrich Investments, Inc. Unlike a licensee, Financial Advisors  a. has only a temporary right to go upon the property.

   b. is entitled to the exclusive use and possession of the property.

c. is not entitled to the exclusive use of the property.

Parts of a Deed Parties: “Grantor” and “Grantee” Words of Conveyance: “convey;” “bargain and sell;” give; grant and transfer;” etc.

Description of Property: “Blackacre” Habendum: “To have and to hold…” Warranty: General, Special, other?

  The Fee Simple (sometimes called fee simple absolute) gives the owner the greatest aggregation of rights, powers and privileges possible under American law and can assigned to heirs.

 A “conveyance” (transfer of real estate) “from A to B” creates a fee simple. A is the Grantor and B is the Grantee.

“To A, but only for so long as he runs his liquor store on the land, then to B” “To A and his heirs, the surface only of Blackacre” “To A and his heirs, but there is reserved to Grantor ½ of all oil, gas & other minerals on, in, under and that may be produced from Redacre…” © 2005 West Legal Studies in Business A Division of Thomson Learning 45

    Estate that lasts for the life of some specified individual. “A grants Blackacre to B for B’s life” grants B a life estate in Blackacre. When B dies, Blackacre returns to A or his heirs or assigns, or a third party in the same condition, normal wear and tear excepted.

Grantor A retains a “future interest” in the property. During B’s life, she can possess, use, and take the fruits of the estate, but not take from the property itself.

   An easement is a right of a person to make limited use of another person's real property without taking anything from the property.

A profit is the right to go onto land in possession of another and take away some part of the land itself or some product of the land.

Property that is benefited by easement/profit carries the the interest with the sale of land.

Beth owns a corporate office park in Ohio. Her ownership rights include the right to sell or give away the property without restriction, as well as the right to commit waste, if she chooses. Beth’s ownership interest is     a. a fee simple absolute.

b. a leasehold estate.

c. a life estate.

d. the power of eminent domain.

ANSWER: A PAGE: 734 Fee simple owner can do anything they want to, subject to laws or ordinances affecting all other property owners. These would limit ability to commit waste, for instance, if dilapidated buildings were regulated. © 2005 West Legal Studies in Business A Division of Thomson Learning

With respect to Adam’s land, Bob has an easement, Carol has a profit, and Don has a license. A right to possess the land is owned     by a. Adam, Bob, and Carol only.

b. Adam and Don only.

c. Adam only.

d. Bob, Carol, and Don only.

Regional Construction Company has a right to drive its trucks across Standard Business Corporation’s property, which is adjacent to     Regional’s office. This right is a. a leasehold estate.

b. a license.

c. an easement.

d. a profit.

Wood Products Corporation, which owns no land, has a right to cut trees from Natural Resource Company’s land. Wood’s right is     a. a leasehold estate.

b. a license.

c. an easement.

d. a profit.

 Ownership in real property can be transferred by:  A written Deed.

 A Gift.

 A Sale.

 An Inheritance.

 Adverse Possession.

 Eminent Domain.

  A Deed is the instrument setting forth the interests in real property being transferred.

Necessary components of a Deed:  Names of Grantor and Grantee.

 Words evidencing intent to convey.

 Legally sufficient description of the land.

 Grantor’s signature.

 Delivery of the Deed.

    Warranty Deed.

 Special Warranty Deed.

Quitclaim Deed.

Grant Deed.

Sheriff’s Deed.

 Period of redemption.

Investment Properties Corporation conveys an office building to Jay with a deed that makes the greatest number of warranties and provides the most extensive protection against defects of title. This deed is     a. a grant deed.

b. a quitclaim deed.

c. a special warranty deed.

ANSWER: D PAGE: 735 Deed warrants property to grantee as against all claims, whether arising from things that the grantor did or things that others in the chain of title before him did.

…and Grantor does hereby bind itself to warrant and forever defend all and singular the Property unto Grantee against every person whomsoever, lawfully claiming or to claim the same or any part thereof.

     Opal conveys three acres of wetlands to Pristine Places, Inc., with a deed that warrants only that Opal held good title during her ownership of the property. This deed is a. a grant deed.

b. a quitclaim deed.

c. a special warranty deed.

d. a warranty deed.

ANSWER: C PAGE: 737 The special warranty deed adds a qualifier at the end of the warranty clause to limit the grantor’s liability: and Grantor does hereby bind itself to warrant and forever defend all and singular the Property unto Grantee against every person whomsoever, lawfully claiming or to claim the same or any part thereof , by through or under Grantor but not otherwise.

Manhattan Developers, Inc., pays Northeast Trust Company to release its claim to a strip of waterfront property. Northeast gives Manhattan a deed that conveys only whatever interest Northeast has in the strip. This deed is     a. a grant deed.

b. a quitclaim deed.

c. a special warranty deed.

d. a warranty deed.

ANSWER: B PAGE: 738 Actually not a conveyance of property, but a relase of any claim to property. Effect is to give the grantee whatever interest, if any, that the grantee may have. © 2005 West Legal Studies in Business A Division of Thomson Learning

  Recording a deed (or any interest in real property) puts the public on notice of the new owner’s interest in the land and prevents the previous owner from fraudulently conveying the same interest to another buyer.

Race statute.

 Pure notice statute.

 Notice-race statute.

  Owner of real property dies, his property is transferred by:  Will (testate).

 Without Will (intestate).

Title is transferred at the time state law so provides in its testate and intestate laws.

 One person possesses the property of another for a certain statutory period of time, that person automatically acquires title to the land, just as if there had been a conveyance by deed. Must be: ▪ Actual and exclusive.

▪ Open, visible and notorious.

▪ Continuous and peaceable.

▪ Hostile and adverse.

Adverse possession has the same legal result as a tenancy at sufferance.

ANSWER: F PAGE: 738 No, it’s much stronger than that! First, what’s a tenant at sufferance? Adverse possession results in what’s called a “limitations” title which can be a fee simple.

Eminent domain refers to the ultimate right of an owner in fee simple absolute to transfer the property by will to whomever he or she wishes. © 2005 West Legal Studies in Business A Division of Thomson Learning

  Rights in property are not absolute. They are constrained by federal and state laws, e.g., nuisance, tax and environmental.

A “Taking” By Eminent Domain: The 5 compensation. th amendment gives the government the right to “take” private land for public use with just © 2005 West Legal Studies in Business A Division of Thomson Learning 72

Bay City wants to acquire undeveloped land within the city limits to convert into a public park. Bay City brings a judicial proceeding to     obtain title to the land. This is a. adverse possession.

b. an easement.

c. constructive eviction.

d. the power of eminent domain.

ANSWER: D PAGE: 739 Where in the constitution does it say the City can do this?

  Anyone who rents housing to the public for commercial purposes subjects herself to various state and federal Landlord-Tenant laws.

Owner of the property is the LESSOR and Tenant is LESSEE; the contract is called the LEASE. The property interest is called a leasehold estate.

    Tenancy for Years.

  Property is leased for a specified period of time.

Periodic Tenancy.

 Created by an express contract.

Does not specify how long lease lasts.

 But rent paid at certain intervals.

Tenancy at Will.

 For as long as both agree. Tenancy at Sufferance.

 Wrongful possession without the right to possess.

A periodic tenancy is created by an express contract under which property is leased for a specified period of time.

ANSWER: F PAGE: 740 No, what’s described here is a tenancy for years (even if it’s only months). You may think of a periodic tenancy as measured by the rent period, in a sense, since you are entitled to one rent period’s notice to leave. © 2005 West Legal Studies in Business A Division of Thomson Learning

A tenancy for years is created by a lease that does not specify how long it is to last but does specify that rent is to be paid at certain intervals. © 2005 West Legal Studies in Business A Division of Thomson Learning

  Lease Agreement can be oral or written (oral may not be enforceable). Lease gives Tenant the temporary right to exclusively possess the property.

Sources of Law:  Common Law.

 State and Local Statutes, and  The Uniform Residential Landlord and Tenant Act (URLTA) which has been adopted by 1/4 of the states.

 Form of the Lease:  Must express intent to establish the lease.

 Provide for transfer of possession to the Tenant.

 Provide for the Landlord’s “reversionary” interest.

 Describe the property.

 Indicate length of the term, amount of rent, when and where rent paid.

 Illegality.

▪ Osborn v. Kellogg (1996).

Dora leases a house from Evan for a two-year term. To ensure the validity of their lease, it should include  a. a description of the premises.

   b. a due date for the payment of the property taxes.

c. a requirement that Dora perform structural repairs to the house.

ANSWER: A PAGE: 741 Read the question – only A is necessary to the validity of the lease; the other things are all very good ideas and examples of the many things that need to be addressed in a lease.

 Trend in the law is to curtail, by contract and real estate law, the immense freedom that Landlords had in the past.

 Possession.

 Using the Premises.

 Maintaining the Premises.

 Rent.

   Landlord has a duty to deliver actual physical possession under URLTA or legal right to possession (“American” rule). Tenant’s right to exclusive possession is only subject to Landlord’s limited right to come unto the property.

Under the covenant of quiet enjoyment, a landlord promises that a tenant will not be disturbed in the use of the premises.

  Eviction occurs when Landlord:  Deprives Tenant of possession of the leased property; or  Interferes with this use or enjoyment of the property to the extent that Tenant cannot use or enjoy.

Constructive eviction occurs when Landlord:  Breaches lease or covenant or quiet enjoyment; and  Makes it impossible for the Tenant to use and enjoy the property.

   Residential property -- Landlord must furnish premises in habitable condition.

Landlord is responsible for maintaining common areas such as stairs, parking lots, elevators and swimming pools.

Commercial property -- may still require Tenant to maintain depending on the lease.

  Implied Warranty of Habitability applies to major (substantial) defects if Landlord knew or should have known about & he had a reasonable time to repair. To determine breach, Courts consider:  Whether Tenant caused damage.

 How long defect existed and age of building.

 Defects impact on Tenant’s safety and health.

 Whether defect contravenes relevant statutes.

  Rent is Tenant’s payment to the Landlord for the Tenant’s occupancy or use of the Landlord’s real property.

 Payment based on agreement, custom, state statute, waiver.

Security Deposits.

 A deposit by Tenant which Landlord may retain for non-payment of rent or damage to premises.

 URLTA has specific provisions as to when it may be kept and when it must be returned.

 If Landlord breaches the warranty of habitability, depending on state law, Tenant may:  Withhold rent -- put in escrow.

 Repair and Deduct -- notify, repair, and deduct repair from rent.

 Cancel the Lease -- must be constructive eviction or breach of habitability.

 Sue for Damages -- difference between what paid for and what received.

ANSWER: F PAGE: 744 Leases usually* are encumbrances that remain in place when property is sold. It is said that the property is sold “subject to” the lease. The buyer simply becomes the landlord.

*Depends on the contract, however!

  Transferring Landlord's Interest.

 Landlord may sell any and all of his rights in the real property.

 New owner buys “subject to the lease,” if lease is recorded.

Transferring Tenant’s Interest.

 Landlord’s consent may or may not be required by statute or the lease itself.

 Transferring the Tenant’s Interest (cont’d)  Assignments: Tenant transfers his entire interest in the lease to a third person. Original Tenant is not released from liability under the lease.

 Subleases: Tenant transfers all or part of his interest in the lease for a shorter period of time than the lease. Original Tenant is not relieved of liability under the lease.

Allen owns a duplex that he leases to Brad and Cora. Allen may sell  a. the duplex at any time.

   b. the duplex, but only after the lease term expires and Brad and Cora have moved out.

c. the duplex, but only with Brad and Cora’s permission.

ANSWER: A PAGE: 744 He can sell the duplex “subject to” the lease. What rights do Brad and Cora have to dispose of the leasehold interests that they have? © 2005 West Legal Studies in Business A Division of Thomson Learning

Bill leases an apartment from Cathy. Two months later, Bill moves out, and arranges with Dian to move in and pay the rent to     Cathy for the rest of the term. This is a. an assignment.

b. an easement.

c. an eviction.

ANSWER: A PAGE: How is a sublease different than this?

Can “Crunchy” get trademark protection? Crunchy How about the particular way it appears on the bag?

Transcript Can “Crunchy” get trademark protection? Crunchy How about the particular way it appears on the bag?

How about this?

Inspiration!

Duck!

®

Three requirements for valid gift:

Ownership interests are classified as either Possessory or Non-Possessory:

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