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Comment Re:So what? (Score 2) 245

I couldn't find a case concerning Monopoly in general but here is one by Hasbro on copyright infringement for Play-Doh that is good law (precedent), on which the facts seem similar enough to apply.

Status: Positive or Neutral Judicial Treatment Positive or Neutral Judicial Treatment
*474 Hasbro Inc, Hasbro SA and Hasbro UK Ltd v 123 Nahrmittel GmbH and Marketing & Promotional Services Ltd

High Court of Justice, Chancery Division (England and Wales)

11 February 2011
[2011] EWHC 199 (Ch)
[2011] E.T.M.R. 25

Floyd J. :

February 11, 2011

Confusion; Declarations of invalidity; Descriptive names; Honest practices; Infringement; Passing off; Revocation; Trade marks

H1 Community and national trade marks—PLAY-DOH (Classes 16, 25, 28—toys and modelling compositions)—Use by competitor of strap line “The edible play dough”—Action for trade mark infringement and passing off—Counterclaim for declaration of invalidity and revocation—Mark held validly registered—Counterclaims rejected—Infringement found—Whether defence of honest commercial use—Defence dismissed.

H2 The claimant companies, which made and sold among other products a children’s pre-mixed modelling composition, marketed that product under the trade mark PLAY-DOH for which the first claimant was the registered proprietor of one Community trade mark in Classes 16, 25 and 28 and two United Kingdom trade marks, dating back to 1970 and 1986 respectively, for goods in Class 16. The first defendant manufactured abroad, and sold in the United Kingdom, a powdered dough mix under the name YUMMY DOUGH. The YUMMY DOUGH product was promoted in the United Kingdom as “The edible play dough”, these words being printed in a single strap line across the bottom of the packet (illustrated in the judgment). In addition to the strap line, the words “PLAY DOUGH MIX” appeared in the top left-hand corner of the YUMMY DOUGH packet and the words “COLOURED EDIBLE PLAY DOUGH MIX” appeared in a smaller type size than that of the strap line on the side of the packet.

H3 Alleging that the defendants’ importation and sale of its YUMMY DOUGH in packaging that alluded to their own PLAY-DOH trade mark constituted an infringement of the rights in their mark, the claimants commenced infringement proceedings against the defendant. Following an application for interim injunctive relief a consent order was made in which each of the defendants gave temporary undertakings “not to undertake any material re-brand prior to judgment or further order in this action ”. The undertakings were very wide and, if they were to be made permanent at trial, their effect would be to freeze the defendants’ marketing of YUMMY DOUGH within very tight constraints in perpetuity. *475

H4 At trial, the claimants’ case rested on two separate bases: (i) infringement of each of their registered trade marks; (ii) passing off, this claim being based on the goodwill which the claimants maintained that they had acquired through use of the PLAY-DOH mark in the United Kingdom. The defendants counterclaimed for: (i) a declaration that the claimants’ registered trade marks had been invalidly registered because they lacked distinctiveness or were descriptive, and (ii) revocation of the claimants’ registered trade marks on the basis that the words “play dough” had become a common term in the trade for the products in question or on account of the claimants’ inactivity. The defendants also raised a defence to the action for trade mark infringement that their use of the signs complained of was an indication of the kind of goods they sold and that such use was in accordance with honest practices in industrial commercial matters under art.6 of the Trade Mark Directive .

H5 Held , by the High Court, that the claimants’ trade marks were valid and that they had been infringed.

Comment Re:Legality? (Score 1) 252

I would have to disagree with you and agree with eln, the only pre-requisite as far as how many times it has happened to amount to a tortious claim in harassment is that it has happened more than once one more than one occasion. To give you an example, if your girlfriend dumps you and you call her all afternoon, that does not constitute harassment: you would have to do it again the next day.

You would have no recourse in the criminal law, the calls would have to amount to a battery arising from an immediate apprehension of fear of physical violence (subjective). Civil litigation would be the way to go and the test is set out for you above.

Comment Re:I do think about this time to time (Score 1) 515

Just to set you straight on point 3, in the United Kingdom self-defense is a complete defense (even to homicide) as long as it's (subjectively) proportionate. There is no such thing as a 'requirement to retreat from an altercation' - that being said though if you choose not to walk away from something and wind up hurting the other person without a justificatory defense you will risk engaging the criminal law, just as anyone else would in any other situation.

Also.. your premise assumes that all law abiding citizens have been 'dis-armed' and that all criminals are armed. It is possible that some heavy criminals have guns but not the ones that would bother with putting a private citizen in a position that he would need to defend himself (robbers etc).

Comment Re:Erosion of the Commons (Score 1) 544

IANAL, but I have fun with a DSLR, and educate myself on what I legally can or can't do with it.

IAAL and you have fundamentally misunderstood what has happened here. Since you like to educate yourself, I'll share some of my precious time ;)

This is not happening pursuant to any general laws relating to photography, which are probably quite similar in the UK and the US, but under under contract law.

As I understand this situation... When the occupant (that is the resident owner, or leaseholder) of private property (eg. a shopping centre) sets conditions of entry, and displays these conditions of entry in a place visible to the entrant, the entrant is taken to have agreed to those conditions by virtue of entering the premises. The quid pro quo here is that you agree to be bound by the conditions of entry, in return for an undertaking by the occupant not to sue you in trespass.

This is, for example, what gives supermarkets the "right" (it isn't a right, you've just given permission) to search your bags where this is stipulated in the conditions of entry.

The shopping centre in question apparently made it a condition of entry that no photographs be taken by entrants. And this gentleman was apparently in breach. I have not read the conditions of entry, but they may have included an agreement to surrender all " ... equipment; film; and other media to Capital Shopping Centres Group PLC or its authorised agents" on breaching said condition.

I doubt that this works very differently in the US, the UK or indeed any other common law country, (although there may be some variance as to what limits the various legislatures have set as to what contractual conditions might be enforceable).

Confiscation of cameras in the US is theft.

"Confiscation" without a statutory right of confiscation (as some LEOs may have) or the consent of the owner, has been a common-law crime in Britain since at least the 12th century and a statutory one since the 19th, known variously as 'larceny' and 'theft.' Without reading the actual conditions, however, we don't know whether or not the gentleman in question had agreed (albeit unwittingly) to hand over his camera.

The story, I'm led to believe, has a happy ending, the corporation in question having agreed to remove this onerous condition.

The larger problem --the privatisation of the High Street and the concomitant abrogation of individual rights this involves --is, in the face of the relentless invasion of the mall, unlikely to be so happily resolved.

I'm a law student and while I agree with the fundamental points which you make here but I do have some concerns regarding the onerous (a legal term which means, in this context, unfair) terms set out in these supposed notices.

I believe that it was in Thornton v Shoe Lane Parking where Lord Denning said that some terms are so onerous that you would have to have those terms printed in big red letters with arrows pointing towards them (bless him).

In Olley v Marlborough Court Ltd an exemption on the part of the hotel (in the case) was not held to give rise to an exemption because the notice was presented too late. To apply this to this case I should think that the notice would have to be a quite large sign (large enough to be noticed by a reasonable man taking reasonable efforts) on the outside of the mall - that is to say before entry as entry would constitute offer and acceptance and the contract would be formed (you would at that point have agreed to the terms). If they didn't go to reasonable lengths to inform this man and his child (the sign wasn't sufficiently large or something like that) then Parker v SE Railways Co may give relief.

Does this make any sense?

Comment Re:Publisher's attitude is for you to bend over... (Score 1) 290

You, sir, have the finest licensing agreement that I have ever seen in the introduction of your book. I was genuinely moved.

I enjoyed that too!

However I am in law school and that is a pretty air-tight agreement.

"You are allowed to use it, view it, modify it without permission of the author Eugene Blanchard, provided that you agree to the following"

So let's say you wanted to do the most basic thing with this book, all you wanted to do was read it. That would come under "use" in the above.
So if you want to read this book without the authors permission you would have to fulfill all of the following conditions:

                * That you will try to be a better person today than yesterday.
                * That you will exercise your body as well as your mind.
                * That you will tell the persons dear to you that you love them.
                * That you will defend the rights of those who are unable to defend themselves.
                * That you will not hurt your family members emotionally or physically.
                * That you will respect your elders and care for them in time of need.
                * That you will respect the rights of others in their religious beliefs.
                * That you will respect the rights of others in their sexual orientation.
                * That every man, woman and child has the right to be here and is equal regardless of race, creed or color.
                * That you will act honorably in all aspects of your personal and business life.
                * That your family is first and foremost the most important thing in your life.
                * That when you make a mistake, that you admit it and make amends.

Perhaps the agreement should have been worded differently. That one should try to aspire to these goals rather than that they are pre-requisites for use :P
Even a saint couldn't do all of these things and if Mr. Blanchard wanted to sue, any two-bit lawyer could prove that the defendant fell short of at least one of these clauses.

On another note, I doubt it will come to that and having to read boring contracts all day long, I enjoyed this one :) Thanks.

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