IP class 14

murphy bed. 
if your term becomes generic, you lose your TM rights.

why allow a benefit to be taken away?
policing the trademark is important: we may ask, what has the trademark holder done to protect their trademark, such as marketing, lawsuits,
but there are circumstances where we want for any manufacturer to be able to use the term because of the spectrum of distinctiveness. in terms of generic marks, we want all manufacturers to have access so that there is competition in the market.

in June 2006, OED added "Google" as a verb. in context of murphy bed, this is a problem because it is a threat to successful mark owners. the threat is that we think that the TM system must co-exist with competitive market, and we will outweigh the market's needs with

naked licensing and assignment in gross: dawn donut

allows the company to use the donut name but doesn't really look at what the company is doing with the name.
what's the TM problem? you're not policing your TM. TM is a signature of the quality of product. why do we regulate this?
TM is distinction between producer and product. allowing the licensing of a TM without quality control then

in what way could the licensor effect control over the product and business?
the licensor must have both the right and have done something that shows attempt to police the quality of the product. it can't be a sham.

if we don't want the court to force companies to follow judicially formed standards, then what do we want?
- the market to regulate

the problem of the TM owner exiting the marketplace:

functionality: trafFix devices.
question of whether a TM exists at all. TraFix is sued by marketing displays for misappropriating its trade dress. the springs created by marketing displays may not be necessary.
two issues:
1. back-door patent. we as the public would be getting cheated because you had a patent lasting 20 years, and now you want a TM, which would disserve the public because

if trafFix must use 4 springs for hwat can be accomplished with 2, then their product is more expensive and its an expense that has nothing to do with "good will" or anything "necessary for the market". this is a functional feature, regardless of whether there is secondary meaning. why? because TM would create a mucky infraction on the patent system here. we want to prevent TM law from being a means of restricting trade in a way that diminishes competition, and allows producers to compete for reputation. we don't want the competition over reputation to become a vehicle for monopolization.

mattel v. mca records
majority says that this is a ridiculous song and the doll, barbie the word, has TM. but
there can be social contests over the meaning of a term, even a TM. what would happen if there wasn't this type of defense, and mattel didn't like what you had said about their company? if you're using the TM just as another means to infringement, but you

nadel v. play by play.
nadel doesn't tell play by play that you can get the idea that they disclose anywhere. why should they be allowed to do that? because

desny v. wilder
case arises before 1976 copyright act. after the act, the copyright of a written work would be preemptive. transferrence of creative ideas is being driven into the copyright law area. desny made a pitch to billy wilder and then ace in the hole is made. his claim is a contract claim, that the secretary implied that the idea would only be used if desny was paid.

economy of getting information.

intellectual property law is in essence a chance to find and disseminate information in a way that is efficient and fair to extent possible. by keeping something secret, you may lose rights and be precluded from using the information in the future. there are tremendous pressures towards institutionalizing creative effort and information. and to an extent, fairness falls to the wayside.

we discussed fair use of intellectual property, personhood interests of investment, and moral interests.


source-identifiers: if you're the only person using a product for 20 years then we 


2.

what i

biz org class 28

Unical: whatever the takeover defense measure chosen, it has to proportionately mirror the takeover threat.

the court's judicial interpretation of takeovers in this section.

revlon: example of a poison pill

an investor that you look to to help out is a "white knight"

cancellation fee is an agreement between the "white knight" and the target company, such that the white knight still gets something out of the bargain, even if it loses the bidding war. the parties will negotiate the value of the cancellation fee.

how is this a takeover defense mechanism?

if the hostile acquirer outbids the white knight, then the target company must pay the cancellation fee, which is an acquired debt of the hostile company/majority shareholder. this is very unattractive, because no matter what happens the white knight will have a benefit.

"no-shop agreements": agreement between the target and white knight that the friendly merger agreement will not be used to shop around the target company to get a higher return for the shareholders.

"lock up agreement": the white knight is given an option to buy multiple, valuable divisions of the target company, or the "crown jewels" of the company, at a price significantly reduced from the appraised value.

it is the duty of the targeted board to maximize the value that the shareholders can get.
no shop, lockup and cancellation were employed to stop the bidding war and to stop the hostile acquirer, and that stoppage of the bidding war stopped shareholders from being able to get the highest price. this is a breach of fiduciary duty to the shareholders.

companies exist to maximize capital for share holders. boards can consider what will be good for consumers in the long run. but they cannot do what

time-warner.
powerful CEOs can get a friendly bidder to do what it wants.
when time and warner decided they wanted to expand via merger, the negotiations fell through because the ego of the warner CEO caused a failure of the deals. ross wanted to maintain control of the merged companies, and was concerned about the amount of power he would exert. once a deal was negotiated, ross wanted power over the combined time-warner. he let things drag on, and that allowed paramount, a hostile bidder to come along a few years into negotiations, and target time. 

in time-warner, the threat that time fended against was that a merger with paramount would change the culture of the company and way of doing business.  the time company said that it wanted to preserve the culture of the time-warner company, but the target incumbent said that a merger with paramount would destroy the time culture.

in unical, the target company said that the bid was too low and therefore coercive.

the court bought the argument of time company that retaining the time culture was what was best for the shareholers in the long run. short term interests were not triggered. particularly noteworthy is that the time-warner merger had been ongoing for a long time.


14(a)(11) is a finalized but not yet enacted rule (because of the business roundtable). it allows shareholders of at least 3% of the company to accelerate board members of the company. 14(a)(11) is different from the leven & rosenthal cases because those were instances where control was changed by incumbents (SH have the right to be reimbursed for expenses they have laid out for changing the entire slate of the directors). under this rule, control does not shift.

the exam.
flag the issue quickly.
articulate the rule (which will be an expansion on the issue likely, because it will be fairly narrow). **even though we all know what the rules are from class, you MUST spell it out in the answer**
then, identify the particulars of the rule that are most directly affecting the outcome of the circumstances
apply the rule to the facts in light of the stated rule.