Key Concepts & Philosophers

Key Concepts & Philosophers

Aristotle (384-322 BCE)

• Happiness involves flourishing physically, mentally, emotionally, and socially
• People seek community through family, friends, and larger society
• It is important to distinguish between work as a means (survival) and work as an end (self-expression)

Karl Marx (1818-1883)

• Capitalism is efficient but its effects have drawbacks
• Commodification treats everything, including people, as commodities
• Alienation results from product, process, and people
• Fetishism defines ourselves by what we consume, not produce
• Reification is when human nature is shaped by economic systems encouraging selfishness and greed

Garrett Hardin & The Tragedy of the Commons

Main Argument

• Some issues, like population growth, are not solvable by science alone
• Solutions require behavioral, moral, and social changes

Population & Resource Scarcity

• Thomas Malthus stated that population grows exponentially, but resources are finite
• In a finite world, resource sharing decreases as population grows
• The goal of "the greatest good for the greatest number" becomes impossible

Utility & Its Limitations

• Maximizing both population and quality of life is mathematically impossible
• More people results in fewer resources per person, leading to less leisure, art, and culture
• Optimum population is less than the maximum

The Tragedy of the Commons Explained

• William Forster Lloyd coined the tragedy of the commons
• The core issue is individuals acting in self-interest, overusing shared resources, leading to collective ruin
• Overgrazing on a shared pasture benefits the individual but harms the group as an example
• Key quote: "Freedom of the commons brings ruin to all."

Solutions to Avoid the Tragedy of the Commons

• Private property prevents overuse by assigning ownership
• Coercion (mutual agreements, laws, or taxes) forces individuals to limit their consumption
• Government regulations & taxation controls pollution and environmental damage

Climate Change & Environmental Ethics

Major Causes of Climate Change

• Fossil fuel power generation
• Manufacturing
• Transportation
• Building energy consumption
• Excessive consumption

Sustainable Solutions (3 R's)

• Refuse
• Reuse
• Recycle

What Won't Solve the Problem?

• Science & technology alone because moral and behavioral change is needed
• Free markets because individuals will overuse the commons
• Appeals to conscience since it creates a moral dilemma to act selfishly or be exploited

Ethics & Morality in Resource Management

• Moral decisions depend on the system's condition at the time
• Rights-based ethics alone cannot solve collective problems, so administrative laws are needed
• "Who will watch the watchers?" is a challenge in granting regulatory power

Hardin's Perspective on Population Control

• Freedom to breed must be restricted to prevent overpopulation
• Mutual coercion (agreed upon by the majority) is necessary
• Unregulated population growth leads to disaster
• Quote: "Freedom is the recognition of necessity." – G.W. Hegel

Perspectives on Regulation

Libertarian Perspective on Regulation

• Libertarian views exist on product safety and government regulation
• Austin Petersen and Darryl Perry have views on government intervention
• Debates occur on whether licenses should be required for driving and other activities

Automotive Regulation

• Government regulations are in place for driving, such as licenses, speed limits, and seat belts
• Debates are ongoing over public vs. private roads and associated costs
• Emissions regulations and vehicle inspections are common
• Protections are in place for consumers, employees, and shareholders in the auto industry

Consumer Protection & Deceptive Advertising

• Federal and state consumer affairs offices take a role
• Deceptive advertising and puffery is clearly defined
• Requirements exist for advertising claims such as scientific evidence and a factual basis
• Bait-and-switch advertising involves specific definitions and examples

FTC Guidelines for Online Businesses

• Ads must be truthful and substantiated
• Restrictions apply to unfair or misleading ads
• Clear and conspicuous disclosures are required

FTC Orders & Remedies

• Cease-and-desist orders
• Counteradvertising
• Multiple product orders
• Consumer damages (Lanham Act)

False Advertising Laws

• Required elements must be present for proving false advertising (Lanham Act & state laws)
• State regulations exist towards deceptive trade practices

Telemarketing & Sales Regulations

• Telephone Consumer Protection Act (TCPA) & robocall restrictions exist
• TRACED Act provides new protections against robocalls
• FTC's Telemarketing Sales Rule (TSR) requirements are in place
• Cooling-off laws provide consumer rights in door-to-door and online sales

Product Labeling & Food Safety

• Requirements exist under the Fair Packaging and Labeling Act
• Ethical debates take place on labeling terms (e.g., "milk" and "burger")
• Caloric content requirements are required for restaurant and vending machine foods

Health & Safety Regulations

• Federal Food, Drug, and Cosmetic Act (FDCA) protects from adulterated/misbranded food & drugs
• FDA drug testing and approval processes are implemented
• Consumer Product Safety Act (CPSA) gives CPSC authority to set safety standards, ban hazardous products, recall unsafe items, and defines manufacturer responsibilities for hazardous products

Healthcare & Insurance Regulation

• Obamacare (ACA) reforms provide coverage for preexisting conditions and young adults
• Insurance companies are required to meet spending requirements and give consumer rebates

Credit & Financial Protections

• Truth in Lending Act (TILA) covers disclosure of loan terms
• Fair Credit Reporting Act (FCRA) covers consumer rights in credit reporting

Sports Gambling & Consumer Risks

• The Murphy ruling led to sports betting legalization
• Financial risks of gambling addiction are debt, bankruptcy, and domestic abuse
• Suggested protections include cooling-off periods and income-based betting caps
• Bookmakers respond with PSAs, treatment centers, and voluntary cooling-off measures, along wit VIP treatment for losing bettors vs. restrictions on winners

Antitrust Law Study Guide

Introduction to Antitrust Laws

• Foster competition and protect consumers
• Encourages companies to innovate and offer better products at lower prices

The Rise of Business Trusts

• Post-Civil War sparked concerns over declining competition
• Large corporations created business trusts to reduce/eliminate competition

Standard Oil & the Need for Regulation

• By 1890, Standard Oil controlled 90% of the U.S. refined petroleum market, harming small producers
• Senator John Sherman advocated for federal intervention

The Sherman Antitrust Act (1890)

• Section 1 declares contracts, combinations, or conspiracies that restrain trade illegal
• Section 2 criminalizes monopolization, attempts to monopolize, and conspiracies to monopolize

Elements Required for a Section 1 Violation

• Agreement between two or more parties
• The agreement unreasonably restrains trade
• The agreement affects interstate commerce

Types of Section 1 Violations

• Per Se Violations are automatically illegal (e.g., price-fixing, market division, group boycotts)
• Rule of Reason Analysis is when courts evaluate whether a restraint unreasonably restricts trade based on factors like purpose, market effects, and availability of less restrictive alternatives

Horizontal Restraints (Among Competitors)

• Price Fixing: Competitors agree on pricing (per se violation)
• Group Boycotts: Agreement to exclude a business from the market (per se violation)
• Market Division: Competitors split customers/territories (per se violation)
• Trade Associations can be legal but may facilitate collusion in concentrated industries

Vertical Restraints (Different Supply Chain Levels)

• Territorial or Customer Restrictions are when Manufacturers limit retailer locations/customers (rule of reason applies)
• Resale Price Maintenance Agreements are when Manufacturers dictate retailer prices (evaluated under rule of reason)

Section 2 of the Sherman Act: Monopolization

• Prohibits misuse of monopoly power

Elements of Monopolization

• Possession of monopoly power
• Willful maintenance of monopoly power (not just due to innovation or efficiency)
• Predatory Pricing: Selling below cost to eliminate competition

Proving Monopoly Power

• Direct Evidence: Firm intentionally controls prices
• Indirect Evidence: Firm has dominant market share with barriers to entry

Defining the Relevant Market

• Product Market: Includes interchangeable products
• Geographic Market: The area where consumers can find alternatives

Attempted Monopolization

• Anticompetitive Conduct
• Intent to Exclude Competition
• Dangerous Probability of Success

The Clayton Act (1914)

• Supplements the Sherman Act by addressing specific anticompetitive practices

Four Key Provisions of the Clayton Act

• Price Discrimination: Charging different prices for identical goods/services
• Exclusive-Dealing Contracts & Tying Arrangements: Restricting buyers from dealing with competitors
• Mergers: Preventing mergers that reduce competition
• Interlocking Directorates: Prohibiting the same person from serving on boards of competing companies

Modern Antitrust Issues

• Big Tech Monopolies like Google, Facebook, and Amazon dominate markets without raising prices, challenging traditional antitrust frameworks
• Global Reach is when U.S. laws apply internationally to protect both domestic and foreign markets

Antitrust Enforcement & Private Lawsuits

• Government & private parties can sue for antitrust violations
• Treble Damages: Injured parties can recover triple the damages suffered
• Various statutory and judicial exemptions exist for specific industries

Key Takeaways:

• Sherman Act focuses on restraint of trade & monopolization
• Clayton Act addresses price discrimination, mergers, and exclusive dealings
• Modern challenges are when Technology giants and globalized markets require evolving enforcement strategies

Limited Liability Partnerships (LLP)

• LLPs involve a partnership that maintains pass-through taxation while limiting personal liability for partners

Advantages:

• Protects partners from personal liability for others' malpractice
• Commonly used by professional service firms (e.g., law firms, accounting firms)

Requirements:

• Must comply with state statutes
• Annual report filing is required to maintain status

Liability:

• Partners are still liable for their own negligence
• Supervising partners may also be liable

Limited Partnerships (LPs)

Structure:

• At least one general partner has full liability and management duties
• One or more limited partners are investors without a management role, and their liability is limited to their investment

Key Features:

• General partner is responsible for debts and management
• Limited partners have financial stakes but no control over operations

Limited Liability Companies (LLCs)

• LLCs A hybrid business structure combines limited liability (like a corporation) with pass-through taxation (like a partnership)

Advantages:

• Limited liability for members
• Tax flexibility where one can choose partnership or corporate taxation
• Attracts foreign investors

Disadvantages:

• More expensive to form and maintain
• Lack of standardized roles can create management confusion
• Varying state laws create inconsistencies for multi-state businesses

LLC Management & Operating Agreements

• Operating Agreement Covers details about management structure and decision-making, profit distribution, transfer of membership interests, dissociation events and dissolution triggers, member meetings and voting rights, and buyout pricing upon dissociation

Dissociation Causes:

• Voluntary withdrawal, expulsion, bankruptcy, incompetence, or death

Franchises

• A Business arrangement where a franchisor licenses intellectual property (brand, trademarks) to a franchisee

Types of Franchises:

• Distributorship is when Franchisee sells franchisor's products (e.g., beer distributors)
• Chain-Style is when Franchisee operates under franchisor's brand and system (e.g., McDonald's)
• Manufacturing/Processing is when Franchisee manufactures products using franchisor's formula (e.g., Coca-Cola bottlers)

Termination Rules:

• Must be "for cause" (e.g., breach of contract, insolvency, failure to meet quotas)
• Franchisees may have a cure period to fix issues before termination

Stock Market & Corporate Regulation

1865-1929 Growth & Market Evolution

• Key Events include the US becoming the leading industrialized nation, a shift from agriculture to urban, factory-based work, along with consumerism and credit purchases emerging in the 1920s

1929 Stock Market Conditions

• No federal regulations existed before 1933
• Market speculation led to widespread trading, including buying stocks on margin
• The crash led to massive unemployment and bank failures

The New Deal & Financial Regulation

• Key Reforms by Franklin D. Roosevelt included the Securities Act of 1933 to regulate stock markets and require transparency, the FDIC to ensure bank deposits up to $250,000 per person, Social Security (1935), and Unemployment Insurance (1935), and the Fair Labor Standards Act (1935) to strengthen workers' rights

Securities Act of 1933

• Purpose is to prevent fraud and stabilize the securities industry and requires securities registration with the SEC unless exempt

Prohibited Practices:

• Insider trading covers trading with nonpublic material information
• Fraudulent securities involves selling fraudulent investment products
• Manipulative trading covers using deceptive tactics to inflate stock prices
• Deceit covers misrepresentations in securities sales

Crypto Regulation

Emerging Concerns:

• Lack of uniform regulation
• Potential for fraud and market manipulation
• Debate over classification (securities vs. commodities)

Concluding Remarks on Hostile Work Environment

• Meritor v. Vinson set a precedent for Rabidue v. Osceola Refining Co.
• Three core legal principles existed against Rabidue's claim, Toleration of Free Speech when rough and vulgar behavior should be tolerated in a pluralistic society, Social Consensus as Mediator when the treatment Rabidue experienced was not substandard compared to societal norms, and Assumption of Risk since she should have anticipated such behavior in an oil refinery

Court's Logic in Rabidue Case:

• Workplace behavior should not significantly affect a reasonable person
• If it did, the reaction was deemed irrational
• Without a quid pro quo violation, no hostile environment was established

The Individualistic Model of Equality

• Individuals are viewed primarily as individuals, not group members
• People are expected to process behavior rationally (sticks-and-stones theory)
• However, psychological research questions if people always process experiences rationally

Sartre's Two Modes of Being

• Being-For-Itself-In-Itself (BFI) - when alone, individuals exist independently
• Being-for-Others - when others recognize our presence, we become aware of social judgment

The Look of the Other:

• Assumption that others are judging us negatively
• Based on perceived community views, not necessarily society at large
• May induce shame even when logically unjustified

Factors for Choosing an Organizational Form

• Ease of creation
• Liability of owners
• Tax considerations
• Ability to raise capital

Three Major Business Forms

Sole Proprietorship

Advantages:

• Owner retains all profits
• Simple to create, minimal regulations
• No corporate income taxes
• Full control and flexibility

Disadvantages:

• Unlimited personal liability
• Business ceases upon owner's death
• Harder to raise capital

General Partnership

• Formation requires an agreement that can be oral, written, or implied by conduct

Essential Elements:

• Profit/loss sharing
• Joint ownership
• Equal right to management

Operations:

• Partners share equal management rights unless otherwise agreed
• Unanimity is required for major changes (e.g., adding a partner)
• Inspection of books and property rights are regulated

Liability:

• Personal liability exists for all partners
• Joint liability means all partners can be sued as a group
• Pass-through taxation in place since a partnership does not pay taxes

Corporation

• Not discussed in detail in this lecture

Limited Liability Entities

Limited Liability Partnership (LLP)

Advantages:

• Pass-through taxation
• Limited personal liability for malpractice of other partners

Operations:

• Must comply with state statutes
• Annual reports required for continued status

Limited Partnership (LP)

Structure:

• General partners manage and have unlimited liability
• Limited partners contribute capital but do not manage and have liability limited to investment amount

Key Comparisons with General Partnership:

• Limited partners have no management role
• Capital contributions and loss-sharing differ
• Duration depends on the general partner's role

Limited Liability Company (LLC)

• A hybrid structure combines corporate liability protections with partnership tax benefits

Operations:

• Governed by state law
• Citizenship determined by members' state of residence

Operating Agreement Covers:

• Management structure
• Profit division
• Membership transfer
• Meeting formalities and voting rights

Advantages:

• Liability limited to investment
• LLC itself is liable for wrongful acts, protecting individual members

Dissociation & Termination

• Dissociation is when a Partner ceases involvement due to voluntary withdrawal, agreement terms, court order, or personal issues (e.g., bankruptcy, death)

Partnership Termination:

• Dissolution is when a Partnership ends through agreement, legal decree, or partner actions

Winding up:

• Assets liquidated, debts paid, remaining funds distributed

Key Takeaways

• The choice of business structure impacts liability, taxation, and management
• Sole proprietorships are simple but expose owners to unlimited liability
• Partnerships allow shared management but pose risks of personal liability
• LLPs, LPs, and LLCs offer liability protection while retaining pass-through taxation
• Legal cases such as Rabidue illustrate challenges in defining hostile work environments
• Sartre's philosophical perspectives help understand how social judgment influences workplace dynamics

Employment Agreements

• Employment is generally governed by employment at will, meaning either party can terminate employment at any time

Exceptions to Employment at Will:

• Employment contracts include Terms that dictate termination conditions
• Implied contracts use Employee manuals to create expectations
• Retaliation is illegal when Employees cannot be fired for whistleblowing

Are Student-Athletes Employees?

• Coleman v. Western Michigan University (1983) was a case when Coleman, a football player, lost his scholarship after an injury and argued he was an employee

The court applied four employment factors:

• Right to control actions?
• Right to discipline/fire?
• Dependent on wages?
• Work integral to business?
• Court ruled Coleman was not an employee, as education was the university's primary business

Employment Laws

• Davis-Bacon Act requires federal contractors to pay prevailing wages
• Walsh-Healey Act applies to U.S. government contracts and mandates minimum wage & overtime pay

Fair Labor Standards Act (FLSA):

• Child labor laws limit working hours for minors
• Federal minimum wage is $7.25/hr
• Overtime is 1.5x regular pay for >40 hours/week
• Exemptions exist for Executives, administrative roles, and professional employees

Family and Medical Leave Act (FMLA):

• 12 weeks of unpaid leave is granted for medical/family issues
• Job loss is prevented unless an employee is in the top 10% of wage earners (key employees)

State Workers' Compensation Laws

• Cover job-related injuries
• Excluded workers: Domestic, agricultural, temp employees

Requirements:

• Employment relationship exists
• Injury occurred on the job

Occupational Safety and Health Act (OSHA)

• Ensures workplace safety
• Requires safety regulations, recordkeeping, and whistleblower protections

Immigration Law

Immigration Reform and Control Act (IRCA) (1986):

• Amnesty was granted for some undocumented workers
• Employers must verify work eligibility through an I-9 form

Employment Visas:

• H-1B is granted to Specialized skill workers (3-6 years, employer-specific)
• H-2A & H-2B is granted for Seasonal agricultural & non-agricultural workers
• O Visa is granted for Extraordinary abilities (arts, sciences, business, sports)

Discrimination Laws

• Protected classes cover race, color, national origin, gender, religion, age, and disability
• EEOC enforces anti-discrimination laws

Discrimination types:

• Disparate-impact are policies which unintentionally disadvantage a protected group
• Disparate-treatment is when there is Intentional discrimination

Defenses:

• Bona Fide Occupational Qualification (BFOQ) lists characteristics which are necessary for a job
• Religious accommodations must be made for employees unless an undue hardship is created
• Age Discrimination (ADEA) protects workers 40+ years old
• Americans with Disabilities Act (ADA) is in place when Employers must provide reasonable accommodations
  • Anderson v. Little League Baseball (1992) shows that reasonable modifications are required unless they pose significant risk

Affirmative Action

• Designed to remedy past discrimination by seeking and promoting underrepresented groups

Sexual Harassment

Types:

• Quid pro quo is shown when Sexual favors are in exchange for work benefits
• Hostile work environment occurs when Unwelcome sexual conduct affects work conditions

Legal Recourse:

• Constructive discharge occurs when a work environment becomes intolerable
• Compensation is possible for Lost wages, benefits, and punitive damages
  • Meritor Savings Bank v. Vinson (1986) - when an Employee claimed sexual harassment by her supervisor, the Court ruled harassment claims can exist even without financial loss, where Employer liability depends on whether they knew or should have known about harassment

Agents & Agency Law

What is an Agent?

• Defined by the Restatement of the Law as A fiduciary relationship where one person (principal) consents for another (agent) to act on their behalf and under their control, acting for the principal's benefit and being subject to their control

Agency Law

• Defines rights and responsibilities of principals and agents
• Determines an agent's authority to act on behalf of the principal

Types of Agents

• Employees are Typically considered agents of the employer
• Independent Contractors may be Agents if authorized but are not under full control of the employer

Factors used to determine status:

• Level of control employer has over work
• Worker's distinct occupation/business
• Supervision required
• Supply of tools/workspace by employer
• Duration of employment
• Payment method (salary vs. project-based)
• Skill level required

Agency Relationships

• Formation requires a Consensual agreement (oral or written) along with both parties having legal capacity
• Legality must be in place to Not violate public policy or law
• Court Consideration exists where Courts focus on the principal's actions to determine if agency exists
• Estoppel is when If a principal's actions cause a third party to reasonably believe agency exists, the principal cannot deny the relationship

Duties of Agents

1. Performance

• Agents must perform with reasonable skill and diligence
• Gratuitous agents (working without pay) cannot be sued for breach of contract but can be liable for torts

2. Notification

• Agents must inform the principal of relevant matters
  • Example: An agent learns a buyer is insolvent and must inform the principal

3. Loyalty

• Act in the principal's best interest
• No conflicts of interest unless disclosed and consented to
• Keep information confidential

4. Obedience

• Follow lawful and reasonable instructions
• Can deviate only in emergencies when the principal cannot be consulted

5. Accounting

• Maintain records of all funds and property received/paid
• Keep separate accounts without mingling of personal and principal's funds

Duties of Principals

1. Compensation

• Pay the agent for services in a timely manner
• If no amount is agreed upon, pay customary compensation

2. Reimbursement & Indemnification

• Reimburse agents for necessary expenses incurred in their duties
• Indemnify agents for liabilities incurred while acting on behalf of the principal

3. Cooperation

• Assist the agent in carrying out their duties
• Cannot interfere with the agent's work

4. Safe Working Conditions

• Provide safe work environments, tools, and warnings of hazards

Authority in Agency Relationships

Types of Authority:

• Actual Authority is when the Agent has been explicitly granted power
  • Express is when there's Clearly stated authority
  • Implied is when there's Authority necessary to carry out express authority
• Apparent Authority is when Principal's actions lead a third party to reasonably believe the agent has authority

Ratification

• Occurs when a principal affirms an agent's unauthorized act
• Principal must have full knowledge and accept the act entirely
• Third party's offer remains revocable until ratification occurs

Requirements for Ratification

• Agent acted on behalf of the principal
• Principal knows all material facts
• Principal affirms the entire action
• Both parties have legal capacity
• Ratification occurs before third-party withdrawal
• Formalities match initial authorization requirements

Liability for Contracts

Principal's Liability Depends on Disclosure:

• Disclosed Principal is when a Third party knows the principal's identity
• Partially Disclosed Principal is when a Third party knows agent is acting for a principal but not their identity
• Undisclosed Principal is when a Third party has no knowledge of the agency relationship

Authorized vs. Unauthorized Acts:

• If an agent acts within authority, the principal is bound
• If an agent exceeds authority, the principal is not bound

Liability for Misrepresentation & Torts

Misrepresentation:

• Principals are liable for an agent's false statements within the scope of authority

Respondeat Superior:

• Employers are vicariously liable for their employee's torts committed within the scope of employment

Justifications:

• Employers have control over employees
• Employers benefit from employee's actions
• Employers are better positioned to bear costs

Testing for Respondeat Superior:

• Was the act part of the employee's job duties?
• Did it occur during work hours and within the workplace?
• Did it serve the employer's interests?
• Was the employer's equipment used?
• Did the employer have knowledge of similar past behavior?
• Was the act criminal and unrelated to employment?

1. Contracts

What is a Contract?

• A legally enforceable promise (or set of promises) which Ensures compliance or provides remedies for breach, governed by common law (services, real estate) or UCC (sale of goods)

4 Elements of a Valid Contract

• Agreement includes Offer & Acceptance, Consideration covers the Exchange of value, Contractual Capacity involves Legal ability to enter a contract, and Legality states it Must not involve illegal activity

Types of Contracts

• Bilateral requires Two promises (e.g., signing a sports contract)
• Unilateral has One promise with required performance (e.g., insurance policies)
• Express is when Terms are clearly stated (oral or written)
• Implied is when Conduct of parties defines terms
• Formal requires a Specific form (e.g., checks, promissory notes)
• Informal requires No special format

Statute of Frauds (Contracts That Must Be in Writing)

• Contracts for land (sale, mortgage, lease)
• Contracts that cannot be performed within one year
• Contracts for goods over $500

2. Breach of Contract & Remedies

• Breach is defined as the Failure to meet contractual obligations

Remedies include:

• Compensatory Damages which are Direct monetary losses
• Consequential Damages which are Indirect economic losses
• Liquidated Damages which are Pre-agreed penalty in contracts
• Specific Performance is when the Court forces party to fulfill obligations
• Duty to Mitigate which requires the non-breaching party try to reduce damages

3. Waivers & Enforceability

• Waivers protect organizations from lawsuits (e.g., injuries at an event), where Consideration in waivers is intangible (right to participate vs. promise not to sue), and Courts assess fairness and equal bargaining power
• Waivers are usually only enforceable for ordinary negligence, not fraud or coercion

4. Commodification & Karl Marx's Concepts

• Commodification is Turning goods, services, or people into marketable items
• Alienation is when there's a Separation of workers from the products they create
• Fetishism is when goods are Valued based on their exchange value, not actual usefulness
• Reification is Treating social relations as natural or inevitable (e.g., seeing capitalism as the only system)

Trademarks

• Helps to Identify the product's source, Prevent consumer confusion, Ensure consistent quality, and Represent substantial advertising investment

Types of Marks (Lanham Act, 1946):

• Trademark Distinguishes goods (e.g., Nike logo)
• Service Mark Distinguishes services (e.g., NCAA Final Four)
• Collective Mark is Used by organizations (e.g., NFLPA logo)

Creating Trademark Rights:

• First to use in commerce
• Continuous and uninterrupted use
• Distinctive enough to be legally protected
• No automatic international protection exists

Trademark Protection Levels are divided into:

• Fanciful Marks which are Invented words (e.g., Verizon)
• Suggestive Marks which Hint at a product's nature (e.g., Powerade)
• Descriptive Marks which Must gain secondary meaning (e.g., Arena Football League)

Trademark Infringement:

• Likelihood of consumer confusion based on Strength and similarity of the marks, Evidence of actual confusion, Quality and similarity of products, and Good faith of the alleged infringer
  • Boston Athletic Association v. Sullivan (1989) - Sullivan sold unofficial Boston Marathon merchandise, and when BAA sued for trademark infringement, Courts ruled in favor of BAA due to potential consumer confusion

Defenses to Trademark Infringement:

• Abandonment (e.g., unused trademarks like "trampoline")
• Fair Use (e.g., parody use)
• Genericness (e.g., common terms like "Championship")

Copyright Law

Copyright Act of 1976:

• Protects original works in tangible form and last for the life of the author + 70 years, however Does not protect mere ideas

Protected Works:

• Books, music, films, photographs, choreography, architecture

Copyright Infringement:

• Strict liability: proof of copying suffices where the Remedies available are Injunctions, monetary damages, and attorney's fees

Fair Use Doctrine:

• Allows limited use for Criticism, commentary, news, teaching, and research, however Courts evaluate the Purpose as either commercial or educational, The Nature of the work, The Amount copied, and the total Market impact

NBA v. Motorola (1997)

• NBA sued Motorola for real-time game stats distribution however the Court ruled NBA games are not copyrighted but broadcasts are, where Motorola's stats were factual and not infringing

Morris Comm. v. PGA Tour (2000)

• PGA controlled score distribution at tournaments and the Court ruled PGA could regulate its real-time scoring due to investment in data collection

Patents

• Protects inventions (processes, machines, compositions of matter) when they Are novel and useful for a Duration of 20 years from the filing date, however Cannot patent ideas, only tangible inventions

Ambush Marketing

• Capitalizes on major events without official sponsorship, relying on Legal tactics related to Generic event advertising, Buying ads during event broadcasts, and Promotions near venues

Right of Publicity & Privacy

• Right of Publicity Protects an individual's name, image, and likeness from unauthorized commercial use
• Right to Privacy Prevents intrusion, misappropriation, and false light portrayals, but Limited by The First Amendment which protects the use of public figures' names and likenesses in news and creative works