North Atlantic Regional Business Law Association
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Published by Husson College Bangor, Maine For the NORTH ATLANTIC REGIONAL BUSINESS LAW ASSOCIATION EDITOR IN CHIEF William B. Read Husson College BOARD OF EDITORS Robert C. Bird Gerald A. Madek University of Connecticut Bentley College Leslie H. Brooks Carter H. Manny Nichols College University of Southern Maine Gerald R. Ferrera Christine N. O’Brien Bentley College Boston College Stephanie M. Greene Lucille M. Ponte Boston College University of Central Florida William E. Greenspan Margo E.K. Reder University of Bridgeport Boston College Anne-Marie G. Harris David Silverstein Salem State College Suffolk University Stephen D. Lichtenstein Edwin W. Tucker Bentley College Emeritus David P. Twomey Boston College i GUIDELINES FOR PUBLICATION Papers presented at the 2006 Annual Meeting and Conference will be considered for publication in the Business Law Review. In order to permit blind refereeing of manuscripts for the 2006 Business Law Review, papers must not identify the author or the author’s institutional affiliation. A removable cover page should contain the title, the author’s name, affiliation, and address. If you are presenting a paper and would like to have it considered for publication, you must submit two clean copies, no later than March 31, 2006 to: Professor William B. Read Husson College 1 College Circle Bangor, Maine 04401 The Board of Editors of the Business Law Review will judge each paper on its scholarly contribution, research quality, topic interest (related to business law or the legal environment), writing quality, and readiness for publication. Please note that, although you are welcome to present papers relating to teaching business law, those papers will not be eligible for publication in the Business Law Review. This subject matter should be submitted to the Journal of Legal Studies Education. Also note that the Board of Editors will consider only one paper per person, including co-authored papers. Only papers presented at the Annual Meeting will be considered for publication. FORMAT 1. Papers should be no more than 20 single-spaced pages, including footnotes. For fonts, use 12 point, Times New Roman. Skip lines between paragraphs and between section titles and paragraphs. Indent paragraphs 5 spaces. Right-hand justification is desirable, but not necessary. 2. Number pages in pencil on the back in the lower right corner. Do not number the front of the page. Please do not fold or staple your paper. 3. Margins: left--1-1/2 inches, right, top, bottom (except first page)--1 inch. 4. Upon acceptance, the first page must have the following format: the title should be centered, in CAPITAL LETTERS, on line 10. On line 12 center the word “by” and the author’s name, followed by an asterisk (*). Begin text on line 15. Two inches from the bottom of the first page, type a solid line 18 spaces in length, beginning from the left margin. On the second line below, type the asterisk and the author’s position or title and affiliation. 5. Headings: FIRST LEVEL (caps, flush with left margin) Second Level (center, italics) Third Level: (flush with left margin, italics, followed by a colon [:]) Fourth Level: (flush with left margin, italics, followed by a colon [:], with text immediately following). 6. Endnotes should conform to the Uniform System of Citation, 17th edition (2000), and should begin 3 lines after the end of the text. 7. An IBM compatible, 3-1/2 inch disc with the final version of your paper, written in Microsoft Word, must accompany your paper. ii The Business Law Review is published once each year. Its purpose is to encourage scholarly research in Business Law and the Legal Environment of Business. Publication is made possible by gifts and grants from: Andover IP Law, Andover, MA. Bentley College, Waltham, MA. Husson College, Bangor, ME. North Atlantic Regional Business Law Association Simmons College, Boston, MA. Suffolk University, Boston, MA. University of Bridgeport, Bridgeport, CT. University of Southern Maine, Portland, ME. University of Wisconsin, Oshkosh, WI. West Educational Publishing THANK YOU Next Annual NARBLA Meeting April 8, 2006 Babson College, Babson Park, MA. Please contact: Professor Carolyn Hotchkiss Business Law Department Babson College Babson Park, MA. 02157 Phone: 781-239-5528 [email protected] iii TABLE OF CONTENTS Trademark Dilution and Circumstantial Evidence: Can Savin Save the Victoria’s Secret Case?............................... 000101 Robert C. Bird Massachusetts Covenants Not to Compete in An Era of Employment Uncertainty..................................... 000125 David A. Goodof Federal Personal Jurisdiction in Cyberspace in Trademark Infringement Cases.................................................. 000141 William E. Greenspan The Alternative Minimum Tax for Corporations and a Value Added Tax As a Replacement..................................... 000155 Willis W. Hagen II Differentiating Between Resident and Nonresident Hunters: A Violation of Equal Protection, Discrimination Against Interstate Commerce, or Rationally Based?............................... 000169 Richard J. Hunter, Jr. Does Title IX create a Private Right of Action to Sue Over Retaliation? ........ 000191 Michael E. Jones U.S. Government Scrutiny of International Airline Passenger Data: Are European Privacy Concerns Being Adequately Addressed?............... 000105 Carter Manny The Continuing Sage of Investigatory Interviews in the Non-Union Workplace: The NLRB Revises the Rules Again ................. 000129 Fred Naffziger and Larry Phillips Too Few Notes? Digital Sampling and Fragmented Literal Similarity in Newton v. Diamond ....................................... 000141 Lucille M. Ponte No More Smoke in Those Smiling Irish Eyes: The 2004 Smoking Ban ......... 000161 Carol Daugherty Rasnic The Utilization of State False Claims Acts to Collect Sales and Use Taxes ...... 000181 Robert E. Shapiro Fourteenth Amendment Due Process Rights v. States’ Sovereign Immunity..... 000199 Louis A. Trosch Getting It “Right”: The Everchanging NLRB Precedents on Coworker Presence at Investigatory Interviews ........................... 000223 David P. Twomey Stalking in the Wilderness: A Preventative View of the Law of Sexual Harassment............................................ 000235 Bruce W. Warren and Thomas B. Merritt © Copyright 2005 North Atlantic Regional Business Law Association iv TRADEMARK DILUTION AND CIRCUMSTANTIAL EVIDENCE: CAN SAVIN SAVE THE VICTORIA’S SECRET CASE? by ROBERT C. BIRD* “[T]he nine justices, in a unanimous opinion, offered few details as to what level of proof [of dilution] would be required. Evidently, it’s a secret.”1 On March 4, 2003, the United States Supreme Court decided Moseley v. V Secret Catalogue.2 In this case the Supreme Court attempted to resolve a single important issue, whether or not proof of “actual dilution” or merely evidence of a “likelihood of dilution” was necessary to satisfy a dilution claim under the Federal Trademark Dilution Act (FTDA).3 The FDTA allows any trademark holder to pre- vent the dilution of its mark by a competitor by obtaining an injunction or damages in court.4 The plaintiff in the Moseley case claimed that the defendant diluted the plaintiff’s “Victoria’s Secret” lingerie trademark by opening a store named “Victor’s Secret” which sold adult clothing, novelties, and gifts. Resolving a circuit court split, the Court concluded that a litigant must show evidence of actual dilution in order to prove a successful dilution action. The Court reasoned that the FTDA’s * Assistant Professor, University of Connecticut. 1 Unknown Author, The Month in Fashion: Court Briefs, W, May 2003, at 44. 2 537 U.S. 418 (2003). 3 15 U.S.C. § 1125(c)(1) (2004). 4 Id. 2 / Vol. 38 / Business Law Review statutory language required proof of actual dilution because the FTDA lacks any reference to the “likelihood of harm” language commonly found in state dilution statutes requiring a lower standard. The Supreme Court justices likely hoped that such a decision would definitively settle the issue among the lower courts and promote harmonious judicial decisions. Unfortunately, as happens with many high court opinions, the decision itself raises more questions than it answers, making the litigant’s task of reading the judicial tea leaves for an accurate representation of the law all the more difficult. The court affirmed the actual dilution proof requirement, but remarked in dicta that direct evidence would not be necessary if dilution could be reliably proved through circumstantial evidence. The Court’s almost casual remark turns what could have been a definitive ruling into one that leaves room for significant ambiguity regarding the nature, quantity, and scope of circumstantial evidence that could override the Court’s actual dilution holding. It is unlikely that the Supreme Court will revisit this issue any time soon, leaving lower courts and academics to struggle over the question of under what conditions is actual proof of dilution not necessary in FTDA cases. This article reviews the Moseley opinion, cites language in the dec- ision that leaves open further questions about the true expanse of Moseley, and analyzes subsequent attempts to explain the cryptic Moseley language. Part I of this article introduces the concept of brand and brand dilution and underscores the importance of brand develop- ment and protection in today’s modern economy. This part then dis- cusses brand dilution and brand dilution law from its earliest origins to the pre-Moseley legal environment. Part