WalMart Case Essay Research Paper WalMart Copyright
Wal-Mart Case Essay, Research Paper
Wal-Mart: Copyright and Trademark Lawsuit
Citation: March 23, 2000 Wall Street Journal
Facts: Wal-Mart Stores Inc. won by a children-clothing interior decorator, Samara Brother Inc. , after it sued the Bentonville, Ark. , retail giant and five other retail merchants in 1996 for right of first publication and hallmark misdemeanors.
Wal-Mart had a manufactured contract with a provider in 1995 for a line of kids s vesture based on exposure of Samara who has sued Wal-Mart in the yesteryear for right of first publication and hallmark misdemeanor. Samara presented that their merchandises have a typical expression and manner that clients can tie in with them, therefore still run intoing the criterion for hallmark protection for design, known as trade-dress protection. Samara besides argued that their typical design of its kids s wear gave a alone expression that identified it in consumers mind as coming from Samara.
Unfortunately, Justice Antonon Scalia, said that Samara s line wasn T protected by hallmark jurisprudence because Samara s merchandises seem non inherently typical by its design, like colour. It consequences that Wal-Mart wins the instance by its merchandise-buying procedure. Now, under the high tribunal s determination, the instance will turn to the U. S. Court of Appeals for the Second Circuit to be judged based on the guideline set by the Supreme Court.
Torah:
1. Under Trade Dress Guideline
H You can t double a extremely typical manner to the point where consumers would be confused.
2. Under Copyright Protection
h The holder of a right of first publication owns the peculiar touchable look of an thought, but non the implicit in thought or method of operation.
H Under Supreme Court opinion, a company or interior decorator would hold the extra load of supplying that people associate the design with the shaper.
3. Under Forging Laws
H You can t utilize the logo and label of a interior decorator to portray a merchandise.
4. Under Trademark Laws
h A hallmark is any combination of words and symbols that a concern uses to place its merchandises or services.
H Trademark must be typical.
Remark: Harmonizing to the article, Wal-Mart wins reversal in Lawsuit over Trademarks, is a right of first publication and hallmark case and Wal-Mart won the instance versus Samara Brother Inc. The determination of the Justice seems relevant if it is judged over Laws words by words. As my apprehension, U.S. Trademark Law does non protect certain typical manners, but most companies don t fuss with registering them. Brett Meyer, a right of first publication and hallmark attorney, said general run-of-mill basic designs, there is nil that maker can make to halt clones.
I think that the Laws of Copyright and Trademark lifts a possible cloud and ill-defined musca volitanss. It consequences that some companies can easy take advantage from the musca volitanss. Undoubted, Copyright is to protect people s advanced thoughts. Copyright should be guild under enforcement in order to actuate invention and avoid Me Too merchandises or services.
Red SOX: PUBLIC LAND-TAKING
– Judge s determination is bad intelligence for Red Sox.
Citation: Tuesday, April 18th, 2000 BOSTON GLOBE
Fact: William Weld, the governor of Massachusetts promised the metropolis $ 10 million for the undertaking of ballpark. The governor ne’er said where he would acquire the money, but Springfield functionaries decided to trap the metropolis s economic dream on a baseball field of dreams. When Red Sox came to roll up on the Weld promise, Beacon Hill turned them down.
Superior Court Judge of Massachusetts ruled against Public Land-Taking for a ballpark proposed in Springfield. The determination of Judge Constance Sweeney is shocking in
1. the obstinate haughtiness of some public functionaries to coerce their definition of public good on the populace
2. fascinating the legal bounds of Land-Taking by eminent sphere
Judge s opinion is relevant that Springfield s effort to take a business district shopping promenade and machine store to make a ballpark did non function a public intent. Judge Sweeney s determination hinged on sentiments issued by the Massachusetts Supreme Judicial Court.
Red Sox argued that SJC has ruled that governmental acquisition of land and the funding and building of a athleticss bowl may be considered a valid public intent.
The Boston City Council will besides hold to O.K. any high sphere pickings. Herbert Gleason, a former metropolis corporation advocate in Boston, said The Springfield instance deals non merely with the procedure in Springfield, which is evidently pained Judge Sweeney, but with public intent in high sphere pickings.
Torah: A Sport Stadium may be considered as a valid public intent:
1. if the outgo of public financess
2. if extension of public privileges, power, and freedoms and the usage, rental, and operation of the undertakings
are adequately governed by appropriate criterions and rules set out in the statute law.
It is besides a cardinal rule of jurisprudence that authorities can merely exert its eminent sphere power for a public intent.
Remark: The determination of Judge Sweeney is quit just, but there is infinite left which is needed to be discussed. Obviously, Taxpayer dollars should non be used to construct bowl for the intent of profiting in private owned baseball franchises. The Red Sox must demo a public intent beyond that of giving baseball fans a better ballpark. On the other manus, if Red Sox can demo a public intent of turn outing a better athletics environment, authorities must demo how that public intent will be enforced.
AIR-RAGE DISRUPTION-New Law for increases the punishments
Citation: April 8th, 2000 Boston Globe
Fact: The figure of riders who attack flight crew members of disrupt service through force or opprobrious behaviour is happened in the past old ages. Although infrequent, the breaks threaten the safe operation of aeroplanes. President Clinton signed the Bill of Federal Aviation Administration, which is increasing the mulct of Air-Rage Disruption. Officials at the Association of Flight Attendants, the brotherhood stand foring more than 47,000 flight attenders at most of the state s air hoses, are praising the measure.
In add-on, the brotherhood is besides seeking to work with bearers to command the sum of intoxicant served on flights, because most air-rage perturbation involve rummy riders. While the flight attenders brotherhood does non prefer censoring intoxicant on flights, the brotherhood is inquiring air hose to function merely one drink at a clip and no longer honor riders with free intoxicant drinks as compensation for air hose mistakes. Cynthia Kain, a spokeswoman for the association, said, That merely furthers the belief that drinks will be free-flowing on the plane,
Torah: Federal Aviation Administration reauthorization measure is signed of the step increased mulcts from $ 1,100 to $ 25,000 for riders who found guilty in interfering with an air hose crew member.
Carriers should command the sum of Alcohol served on Flight.
H It is improper to function an drunk individual intoxicant drink
Remark: This instance should be evaluated non merely the safe plane operation but besides the intoxicant drink served. The determination is merely and just as increasing the mulct of interfering with an air hose crew member. The break can dangerous threatens the safe operation of the flight and it besides causes serious effects for the safety of other on-board riders. However, the air hose crew member should take some duty if the break is caused an drunk rider. They should merely function one intoxicant drink at one clip and ID look into for under-age. Therefore, on board intoxicant drinks served should besides be considered in order to avoid the break caused by an drunk rider.
Bidder s Edge vs. Ebay- Injunction Online Auctioneer
Citation: April 17th, 2000 Wall Street Journal
Fact: Ebay, a triumph for the large online auctioneer with broad deductions for Internet Commerce, alleged in a suit filed that Bidder s Edge violate the Federal Computer Fraud and Abuse Act by utilizing information from eBay auction. Bidder s Edge, of Burlington Mass. , is one of several collectors that combine and compare information listed on the sites of eBay, Yahoo! Inc. , Amazon.com. and other auction operators. A federal justice programs to publish a preliminary injunction against Bidder s Edge Inc. in a suit brought by Ebay Inc. Ebay argues that it is improper to take the information from Web site and utilize them in your ain commercial intents. U.S. District Court Judge Ronald Whyte is expected to order Bidder s Edge to halt pulling information from eBay s Web site.
Legal Scholars and intellectual-property Lawyers said such a opinion could put new criterion in the argument between what is considered promotion available information on the Internet and what is the Copyright informations that companies can bear down others to utilize.
The concluding determination is expected within two hebdomads and Ebay agree to post a bond payment of about $ 50,000 to cover any loss to Bidder s Edge if the tribunal concludes the injunction was wrongfully issued.
Torah: Fraud refers that the decepti
on of another individual for the intent of obtaining money or belongings from him. Computer Fraud is that one obtains money or belongings from another by utilizing computing machine engineering or Internet. This action is besides considered as Crime and involves in Copyright Law under Intellectual-Property. Copyright violation is easy on the Internet. Current Copyright jurisprudence is unsure and does non specifically protect copyrighted material on-line.
Copyright Act:
1. Digital Transmission,
2. Allow the right of first publication holder ownership of all online distribution rights,
3. Extinguish the just usage exclusion for electronic transmittal,
4. Make it a offense to disenable anti-copying techniques online.
Preliminary Injunction: A tribunal orders a individual either do or halt making something.
Remark: In the twenty-first century, Internet becomes common for single family, but there is non a specified jurisprudence to guild the e-world. Legislation should come out a clear regulation to curtail the misdemeanor of right of first publication issues and computing machine fraud over Internet.
If Bidder s Edge is proved for misdemeanor of Computer fraud and Copyright, they should be found enforced. By making so, it can besides warn other people and companies to esteem intellectual-property and halt them by steal/copy information from other Web Site for commercial utilizations.
HATE-CRIME: who has right to make up one’s mind the Sentencing? Judge? Jury?
Citation: March 28th, 2000 New York Times
Fact: A Supreme Court statement on March 28th, 2000 on the constitutionality of New Jersey s unusual sentencing process for hatred offenses, the justnesss appeared troubled by the province s jurisprudence every bit good as the broader deductions of turn overing it.
New New Jersey and North Carolina are the lone two provinces specify that the happening need non be beyond a sensible uncertainty, and by a preponderance of the grounds in which Judgess are authorized instead than Juries to do the determination that prejudice was the motivation surely.
A recent instance of improper ownership of a piece has been disputing New Jersey s Ethnic Intimidation Act. In the instance, Mr. Apprendi received a sentence of 12 old ages alternatively of upper limit of 10 he could otherwise hold received.
On the other manus, Justice O Connor asked Mr. O neill who is the suspect s attorney to observe that in some provinces it is the justice who decides, after a jury s determination of guilt. Justice Stephen G. Breyer, an writer of the federal sentencing guidelines told Mr. O niell: if I agree with you, I guess I m keeping the Sentencing Commission unconstitutional because Judgess, non juries, use the assorted factors that determine a suspect s sentence.
The tribunal has struggled in several recent instances over where to pull the constitutional line between the several functions of justice and jury in Torahs that provide for longer sentences when, for illustration, the suspect has used a gun in the committee of a offense or has a condemnable record. In this determination last June continuing Mr. Apprendi s sentence, the New Jersey Supreme Court acknowledged the agitation in this country of condemnable jurisprudence and said, the concluding word on this topic will hold to come from the United States Supreme Court.
Lisa S. Gochman, a deputy lawyer general from New Jersey, who argued in defence of the jurisprudence, emphasized the difference between purpose and motivation in condemnable jurisprudence. Whether a suspect had the needed purpose to perpetrate the offense, indispensable to the determination of guilt, remained as it ever has been, a inquiry of motivation, or why the suspect committed the offense, was traditionally treated as a sentencing factor, she said. A pointed response to this statement offered by Justice Thomas, You argue that if it s an component of the discourtesy it goes to the jury and if it s a sentence sweetening it goes to the justice, and the trouble I have is that you nowhere specify what the differentiation is.
Torah:
Under the Sixth Amendment s right to test by jury, there was an unbroken tradition that it was the jury that had to happen the facts that could increase the sentence.
Remark:
No affair what the result of the statement would be, there a FAIR JUDGEMENT must be made. In my point of position, it is non just to go forth the power of condemning the offense on a individual, Judge. Jury should hold the power to happen and to condemn the offenses, non justice, in order to avoid the bias opinion and favoritism. However, Judgess can hold the power to widen the length of sentence up to the upper limit based on the jurisprudence. For illustration, in the instance of Mr. Apprendi, he received a sentence of 12 old ages alternatively of upper limit of 10 he could otherwise hold received. If jury found him guilty and jury merely sentenced him 8 old ages, so justice can widen the length of sentence up to 10 old ages maximal based on the jurisprudence. Vice versa, if jury already found him 10 old ages sentence which is the upper limit, Judge would non be able to widen the sentence any longer since the sentence is the maximal already.
Philip Morris: instance of order to pay large money to Ex-Smoker.
Citation: March 21st, 2000 Wall Street Journal
Fact: A State-Court Jury found that Philip Morris Cos. and R.J. Reynolds Tobacco Holding Inc. misrepresented the wellness danger of coffin nails, and it ordered the companies to pay $ 1.7 million in compensatory amendss to a former tobacco users deceasing of lung malignant neoplastic disease and to her hubby. The jury squad besides found the 2 largest baccy companies had besides acted maliciousness and therefore could be found for punitory harm.
The complainant, 40-year-old Leslie Whiteley, began smoking in 1972, three old ages after government-mandated warning label looking on coffin nail battalions. Ms. Whiteley was for old ages a heavy tobacco user and didn Ts even quit smoking while pregnant. Finally, she die of lung malignant neoplastic disease after old ages of smoke.
The San Francisco jury found Philip Morris and R.J. Reynold were negligent in the design of their coffin nails and committed fraud in misdirecting people about the wellness jeopardies of smoke.
Torah: Regulation Tobacco:
1. August 1996: FDA unveil landmark regulation to modulate baccy for the first clip
2. April 1997: Federal justice regulations authorities can modulate baccy as a Drug, but bounds on industry advertisement are rejected.
3. November 1998: Forty-six stated embracing a $ 206 billion colony with coffin nail shapers over wellness costs for handling ill tobacco users.
4. September 1999: Justice Department sues the baccy industry to retrieve one million millions of authorities dollars spent on smoking-related wellness attention.
5. March 21, 2000: Supreme Court regulations, 5-4, the authorities lacks authorization to modulate baccy as an habit-forming Drug.
Damage means MONEY. There are two types of amendss:
1. Compensatory harm: the tribunal awards certain sum of money to plaintiff to counterbalance for what he or she has suffered.
2. Punitive harm: the penalty of suspect to avoid making it once more. It is besides used to be a case in point to state others non to make it.
Malice: Purpose of a individual does something and harms others on intentionally.
Negligent: Negligence is aching person non intentionally and accidentally. In order to win a Negligence instance, the complainant has to turn out the undermentioned five elements:
1. Duty: the suspect has the responsibility of due attention to the complainant.
2. Breach
3. Factual Case: the suspect caused and led to the hurt
4. Foreseeable type of injury: the injury is predictable for the suspect.
5. Injury: complainant can demo physically and psychologic hurt.
Fraud: Fraud is a civil wrong that ever happened in a dialogue or contract. Fraud is to lead on other people intentionally and the misrepresentation would wound others.
Remark: Compensatory harm is decided to counterbalance the injuries of complainant. Thus the determination of the jury is right. In the Tobacco shapers instances, baccy companies are negligence no dubiously in beliing the Pomaderris apetala of human organic structure wellness. Punitive harm is besides just in this instance since it can besides warn other baccy companies to be more cognizant on planing the warning label on the coffin nail battalion.
Overall the determination of the jury is merely and just. The result of this instance besides warns the baccy makers and companies to aware the Pomaderris apetala of their merchandises. However, it sounds kind of unfair to penalize merely baccy companies but non heavy tobacco users duty. My inquiry: if baccy companies try their best to warn public about the Pomaderris apetala of the baccy merchandises, should the tobacco users be responsible for their ain wellness and behaviours to the linear drug, coffin nails?
Articles:
Wal-Mart: instance of Copyright and Trademark Violation
Red Sox: Public-Land Pickings
Air-Rage Break: Increasing the mulct
Bidder s Edge vs. eBay: Injunction Online Auctioneer
HATE-CRIME: who has right to make up one’s mind the Sentencing? Judge? Jury?
Philip Morris: instance of order to pay large money to Ex-Smoker.
PEI YIN TSAI ( TAMMY )
LA 245
Professor Jeffrey Beatty
Section MW 10-12
Concluding paper
Due: April 24th, 2000
BUID # : U 94-44-6012
