Briefing Paper 1: Critical Legal Thinking
- Read Case 8.3 Dilution of a Trademark “V Secret Catalogue, Inc. and Victoria’s Secret Stores, Inc. v. Moseley” in your Cheeseman textbook on pages 174-175. •Respond to the three Case Questions found in the Cheeseman textbook on page 175.
•Assume your readers know the facts of the case as articulated in the Critical legal Thinking, Ethics, and Contemporary Business questions. Argue both sides of each issue.
The US Constitution gives the congress the power to enact laws that relate to counterfeiting, treason, piracy among others. The Constitution vests upon the congress other more powers like those that involve regulation of the businesses within the states and among the states (Oswald, 1999). Whenever there is a case that requires regulation, Congress is expected to act on it.
However, the powers of the congress have limits set by the same constitution (Oswald, 1999). The congress has its scope and limits on what it can do when carrying out regulation. Presentment clause provides that every bill from congress must be presented to the United States of America, who will then decide whether to approve it as a law or not (Oswald, 1999).
The Moseleys could be said to be trading off of Victoria’s secrets name. The name Victor’s secret qualifies to be confusingly similar to the name Victoria’s secret can lead to consumers buying their products in the market associating it with the famous Victoria’s secret. Moseleys share the product of women lingerie with the Victoria’s secret; therefore, the use of victor’s secret is more likely to create confusion among customers (Oswald, 1999). The dilution act protects Victoria’s secret trademark holder since allowing the use of victors’ secret would tarnish the trademark name Victoria’s secret. Victor’s secret trades in sex toys and this may not auger well with some female clients who may confuse the two names and therefore stop buying products from Victoria’s secret (Oswald, 1999).
The change in trademark dilution of 2006 (TDRA) favors famous trademarks by protecting them from the usage of their trade names by others who may tarnish or dilute them (Oswald, 1999). This is only fair since building a trademark is not easy and any famous name must be protected.
Briefing Paper 2: Law Case with Answers
- Read Coca-Cola Employee Tries to Sell Trade Secrets to Pepsi-Cola in your Cheeseman textbook on page 159.
•Assume your readers know the facts of the case and are only seeking your opinions on whether the Court was fair in its judgment and whether Williams acted ethically..
•Argue both sides of these issues.
William was under obligation not to act or get involved with people whose interest conflict with the interest of current employer. William in having the thought to sell Coca Cola’s secret to Pepsi amounted to serving two masters at the same time. William’s duty of loyalty prohibits employees from diverting a company’s secret to a competing company (Merges, Menell & Lemley, 2003). Divulging a company’s secret to another competing company or even to use the information on trade secret to help another competitor is a violation of loyalty duty. Therefore, William was not loyal.
Pepsi did the right thing by reporting the three to the authorities. In the spirit of fair competition, employee or a competing company should not obtain, unlawfully, trade secrets of a competing to benefit themselves.
Pepsi could have paid the money that the trio demanded. This is because the value of a trade secret is more valuable to a competing company than it is even to its own company. Trade secret refers to (Merges, Menell & Lemley, 2003).
“…..information, including a formula, pattern, compilation, program device, method, technique, or process a) derives independent economic value, actual or potential from not being generally known to , and not being readily ascertainable by proper means by, other persons who can obtain economic value……..”3
Pepsi-cola would have paid for the amount demanded since the information that they were to be given was of higher value compared to the requested amount (Merges, Menell & Lemley, 2003). The information would have given Pepsi-Cola the blue print of how the coca-cola company operates. It would also have given the secret that Coca-Cola uses in manufacturing it famous drinks to Pepsi. It also included formulas that were used in making a yet to be introduced drink. Pepsi would have capitalized on this and beat Coca-cola by introducing the drink first before their competitors (Merges, Menell & Lemley, 2003).
Briefing Paper 3: Critical Legal Thinking Case
- Read Section 4.3 Physical Examination in your Cheeseman textbook on page 80.
•Should Robert Schlagenhauf be subject to a Court ordered medical examination against his will? Argue both sides.
In the US Constitution, the federal rules of civil procedure rule 35 allow anyone to call for subjection to physical examination of an individual or a group under their legal control provided that they have a good reason and intention of doing so (Kruse, 1996). In Schlagenhauf case, the FRCP rule 35 further states that the person who should be examined be a part of the action and not necessarily be part of any opposing side. It was also held that the contract carriers and the national lead had failed to prove that the defendant’s physical and mental conditions had issues and that they had a good cause for the examination (Kruse, 1996).
Schlagenhauf was part of the whole action and had to face the examination since there was no evidence to show that his mental and physical conditions were poor. The petitions required that the defendant’s physical and mental conditions be examined (Kruse, 1996). This was in order and justified and Schlagenhauf was part of all the actions that were involved in this process.
Application of FRCP Rule 35 may contribute to the unconstitutional infringement on a person’s privacy. This can be during the examination or even during the reporting of the results from the examination. Therefore, the court that carries out this exercise must ensure that the person’s privacy is protected and not made public to everyone (Kruse, 1996).
Briefing Paper 4: Ethics Case
- Read Section 4.6 Ethics in your Cheeseman textbook on page 81.
•Assume your readers know the facts of the case and are only seeking your opinions on the three questions found at the end of Section 4.6. Argue both sides of all issues.
Arbitration refers to the submission of a dispute to a third party, who must be unbiased. The parties of the disputes must agree that they would respect the decision made by the third party. Both parties must agree on the third party (Redfern, 2004).
Parties enter arbitration agreements because of various reasons. Parties let an experienced professional or body to decide on a dispute between them since disputes in most cases are technical and need experienced minds in order to be solved peacefully and in a way that would profit both the parties (Redfern, 2004). Engaging a trusted third party maintains the confidentiality of the proceedings. Court cases expose them to the public (Redfern, 2004). This is very important for the company’s image.
Arbitration also helps the parties to avoid cases of hostility. They parties are encouraged to get involved fully to help in the resolution of the dispute (Redfern, 2004). The parties would therefore work together without escalating their anger towards each other.
Compared to litigation, one would say that arbitration is less expensive and much faster. The period taken in filing of decision in litigation takes more time. The companies are always without time and anything that would reduce time spent in solving a dispute would be the better choice. The process is also quicker than and not as complicated as in litigation (Redfern, 2004).
For an arbitration agreement to be enforceable, it must have two elements present. First, the agreement must state that both the parties would want to present disputes for arbitration. Second, the agreement must provide a platform for dispute dissolution. In this case, the agreement would be enforceable because the parties involved have signed a mutual agreement that any dispute between then in future will be submitted for arbitration (Redfern, 2004). The parties also have a neutral forum for solving their dispute, and that is the National Advertising Council.
Kruse, J. L. (1996). Appeal ability of Class Certification Orders: The Mandamus Appeal and a Proposal to Amend Rule 23. Nw. UL Rev., 91, 704.
Merges, R. P., Menell, P. S., & Lemley, M. A. (2003). Intellectual Property in the New Technological Age: 2004 Case and Statutory Supplement. Aspen Publishers.
Oswald, L. J. (1999). “Tarnishment” and “Blurring” Under the Federal Trademark Dilution Act of 1995. American Business Law Journal, 36(2), 255-300.
Redfern, A. (2004). Law and practice of international commercial arbitration. Sweet & Maxwell.