Category: Notes

Mouse v. Mau5: Implications of the Morehouse Defense in International Trademark Disputes – Note by Zachary Lainer

From Volume 89, Number 3 (March 2016)
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What happens when an iconic cartoon mouse and an internationally renowned, electronic dance music disc jockey face off? While this may sound like the making of a fictitious scenario, this was actually the underlying context of the 2015 trademark dispute between Walt Disney Company (“Disney”) and Joel Zimmerman —stage name “deadmau5” (pronounced “dead mouse”)—in which Disney challenged the trademark registration of deadmau5’s logo. Though short-lived, and likely best remembered for its attention grabbing headlines, the dispute is instructive as to how U.S. trademark law should adapt to international trademark disputes. While the deadmau5-Disney dispute ended by a settlement between the parties, it is extremely probable that there will be more trademark disputes with common factual underpinnings in the future; thus, the dispute raises more questions than answers.

 

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Risk, Reward, and Responsibility: A Call to Hold UberX, Lyft, and Other Transportation Network Companies Vicariously Liable for the Acts of Their Drivers – Note by Lauren Geisser

From Volume 89, Number 2 (January 2016)
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On December 31, 2013, a car accident killed one and injured two pedestrians. The deceased: a six-year-old girl. Her family brought suit in San Francisco against the driver for wrongful death and personal injuries and against Uber Technologies, Inc., Rasier LLC, and Rasier-CA LLC on a theory of vicarious liability. The driver had a contract with Uber and Rasier-CA LLC when the accident occurred and at that time was allegedly waiting to “match” with a passenger through Uber’s app. The question of Uber’s liability centers around whether it should be liable for the acts of its driver at all, and if so, whether it should be liable for the acts of a driver when no passenger is yet in the vehicle. Uber answered the complaint claiming that because it is not a transportation carrier, has an independent contractor relationship with its drivers, and the driver-defendant was neither transporting a passenger nor en route to pick up a passenger, Uber was not liable for any damages.

 

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Controlling Supergraphics: A New Challenge Facing Local Governments Aiming to Limit the Spread of Advertising and Prevent Visual Bight – Note by Lauren Glaser

From Volume 89, Number 1 (November 2015)
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People do not like billboards. These off-site signs, or signs advertising goods and services not available in the near vicinity, allegedly create visual blight, cheapening communities and cluttering the landscape. In addition, they have proven to be hard to control. Local government ordinances aimed at limiting the spread of outdoor advertising and controlling its visual impacts are continually challenged by the well-funded billboard industry. While courts have developed criteria, which often incorporate guidance from the Supreme Court, for determining whether billboard-control ordinances are legal, new technologies in the outdoor advertising industry require local governments to update their regulations and include new definitions to maintain visual protections. Specifically, supergraphics, or oversized signs painted on or attached to building façades, are becoming popular in many areas. This new type of sign results in the same negative visual impact as traditional billboards and is often significantly larger in size. In addition, because supergraphics are often vinyl or mesh affixed to a building façade, they can be erected without the investment in infrastructure required to create a traditional, pole-standing billboard. This means that supergraphics are easier and cheaper to erect, while often creating much more visual disruption.

 

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Limping Toward Decriminalization: The Case Act, De Facto Decriminalization of Domestic Minor Sex Trafficking Victims, and 2-Way CCTV – Note by Alyssa N. Daniels

From Volume 88, Number 6 (September 2015)
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At about 8:15 a.m. on May 2, 2012, National City Police picked up a fourteen-year-old runaway for loitering and suspected prostitution. Lauren’s twenty-eight-year-old “boyfriend” had brought her from her hometown of El Paso, Texas, to California to pimp her out. 

While her “boyfriend” was exploiting her, Lauren performed hundreds of sexual acts on clients. Typically meeting with seven to ten “johns” each day, she was shuffled from one seedy southern California hotel room to the next. Her trafficker moved her from Los Angeles, down to San Diego, back up to Los Angeles, down to Orange County, and finally back to San Diego where she was arrested. During this time, her “boyfriend” had total control over Lauren—he posted online advertisements offering her sexual services on Backpage.com, arranged and paid for the hotel rooms in which she met her clients, dictated how she should dress, and took all of her earnings. 

After being picked up by police in National City, Lauren ran away from a victim’s service center back to her “boyfriend.” She was arrested again for prostitution less than a week later in Los Angeles. Her trafficker was arrested as well and eventually charged by the United States Attorney’s Office for the Southern District of California with Sex Trafficking of a Child in violation of 18 U.S.C. § 1591 and Transportation of a Minor to Engage in Prostitution in violation of 18 U.S.C. § 2423(a).

 

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Miller v. Alabama: A Proposed Solution for a Court that Feels Strongly Both Ways – Note by Liza Little

From Volume 88, Number 6 (September 2015)
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Consider a fourteen-year-old boy whose entire life was spent moving in and out of foster care because his mother was an alcoholic and his stepfather was abusive. This boy suffered from early-onset depression, and had already attempted suicide four times by the age of fourteen. One night, the boy and his friend went to a trailer owned by his mother’s drug dealer to drink and do drugs. After the adult drug dealer passed out from consumption, the boy—seeing an opportunity for some quick cash—took the dealer’s wallet from his back pocket to steal his money. However, the dealer woke up and grabbed the boy by the throat. The boy’s friend hit the dealer with a nearby baseball bat. Once the boy was released, he repeatedly struck the drug dealer with the bat until he believed the man to be dead. To hide the evidence of the crime, the boys set fire to the drug dealer’s trailer, ultimately killing the man inside. This fourteen-year-old boy was sentenced to die in prison for his crimes, without any hope for release. This boy’s name is Evan Miller.

 

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Narratives of Cultural Collision and Racial Oppression: How to Reconcile Theories of a Cultural Defense and Rotten Social Background Defense to Best Serve Criminal Defendants – Note by Sierra Villaran

From Volume 88, Number 5 (July 2015)
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“Once upon a time, not so long ago, culture, in the lower case, was primarily an anthropological preoccupation. Not any more. It is hardly news that peoples across the planet have taken to invoking it, to signifying themselves with reference to it, to investing it with an authority, a determinacy, a superorganic unity of which even the most conservative anthropologist would be wary. Culture, now capitalized in both senses of the term, has come to provide the language, the Esperanto, of difference spoken in the active voice.”

 

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To Plead or Not to Plead: Whether to Bring a Reverse Passing Off Claim in the Post Dastar Era of Lanham Act § 43(A) Litigation – Note by Diana Wade

From Volume 88, Number 5 (July 2015)
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Your client, CreativeSoft, produces CreativeDesign, a computer program that creates cards and brochures. In the 1990s, CreativeSoft sold the program on CD-ROMs. To keep up with the market, CreativeSoft now sells CreativeDesign2.0 only as a downloadable file from its website. CreativeSoft has come to your firm because MockSoft is selling CreativeDesign2.0 as its own product. 

This reminds you of the Lanham Act § 43(a)(1)(A) “reverse passing off” (“RPO”) claim you brought against MockSoft when it sold CreativeDesign CD-ROMs packaged in MockDesign boxes. Now, MockSoft copies CreativeDesign2.0, removes copyright notices from the splash screens, and resells the program from its website. Further, MockSoft confuses customers by creating the impression that MockSoft is the origin of the program. 

Should you file a RPO claim? You prevailed on this claim when MockSoft repackaged CreativeDesign CD-ROMs. However, a RPO claim may not survive the pleading stage of litigation if CreativeDesign alleges that MockSoft has repackaged CreativeDesign2.0. There is a risk of copyright preemption, and many district courts interpret a Supreme Court case, Dastar Corp. v. Twentieth Century Fox Film Corp., as precluding producers of digital products from bringing claims under § 43(a) of the Lanham Act. Why?

 

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Using California State Anti-Discrimination Law to Combat the Overuse of School Suspensions – Note by Allison Fisher

From Volume 88, Number 5 (July 2015)
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The use of harsh, punitive disciplinary measures has become pervasive in our elementary and secondary schools. Many believe these “zero tolerance” educational policies, in which students are suspended or expelled from school for minor violations, are having disastrous effects on students across the country and are responsible for pushing many students out of school and into the hands of the juvenile justice system. Minority students, especially African Americans, have been disproportionately affected by these zero tolerance policies. With increasing success, advocates, parents, and students have been trying to change the way school officials discipline their students, though legislative and litigation efforts and grassroots community organizing. This Note discusses how advocates can use California’s anti-discrimination statute, California Government Code section 11135, to combat the disproportionate effect zero tolerance polices have on African American students.

 

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