Distinguishing Panavision And Bensusan
The law regarding jurisdiction determination was far from crystal clear even before the internet came of age, and courts are now having a difficult time reconciling the "purposeful availment" and related "effects" tests used in traditional jurisdiction analyses with the new paradigms in information transfer made possible by the internet, and in particular by the World Wide Web (WWW). These difficulties are apparent in Panavision, Int'l. L.P. v. Toeppen, 938 F. Supp 616 (C.D. Cal. 1996), and Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996). Both cases involved trademark infringement and dilution suits stemming from the alleged use of the trademark on the WWW. Each court came down differently on the jurisdiction issue, and rightly so, but neither court's analysis was very satisfying when one attempts to distinguish the two cases.
In Toeppen, the defendant had formed a plan to find prominent registered trademarks which had not yet been registered as internet addresses, and register them as his own, with the expectation that he could sell them at a substantial profit to the owner of each mark should that owner desire to do business on the internet using that internet address. The court used a three-part test for specific jurisdiction, the first part of which was the "purposeful availment" test, which in turn became an "effects test" when the claim is in the nature of a tort. After deciding that the claim was tort-like, the court used the "effects test" and found that Toeppen's acts were 1) intentional, 2) aimed at California, and 3) caused foreseeable harm to the plaintiff. This was at the heart of the court's reasoning in exercising jurisdiction.
The facts in Bensusan start out very much like Toeppen, but diverge at a point, resulting in a decision to decline to exercise jurisdiction. In Bensusan, which proceeded Toeppen by ten days, the defendant, a Missouri jazz club, had set up a web page the contents of which contained an allegedly infringing use of the plaintiff's trademark, "The Blue Note". The plaintiff, owner of the mark for a New York jazz club, wanted the New York district court to interpret state law so that it could exercise jurisdiction over the Missouri club. It refused to do so because, under a similar "effects test" to that used in Toeppen (the court here also found the claim to be in the nature of a tort), there was no foreseeable harm to the plaintiff.
Plaintiff website operator, KinderStart.com filed a complaint against Defendant Google, alleging nine claims for relief: violation of the right to free speech under the United States and California Constitutions; attempted monopolization in violation of the Sherman Act; monopolization in violation of the Sherman Act; violations of the Communications Act, unfair competition under California Business and Professions Code §§ 17200; unfair practices under California Business and Professions Code; breach of the implied covenant of good faith and fair dealing; defamation and libel, and negligent interference with prospective economic advantage. The Court dismissed Plaintiff’s first complaint with leave to amend. Plaintiff then proceed to file an amended complaint asserting s...
The Curious Confusion Surrounding Escobedo v. Illinois. (1965). The University of CHicago Law Review, 560-580.
Ferrara is a powerful duke, who likes exercising his authority over everyone around him, especially his wife (the Duchess). He thinks that the time he spends with her is equal to the time he spends observing a piece of art. In fact, he even considers the duchess as one of his a valuable possession. Even when he looks at his dead wife’s painting he talks as if she herself is standing there as a mere object, “Looking as if she were alive. I call/ That piece a wonder, now; Frà Pandolf's hands/ Worked busily a day, and there she stands” (Browning 2-4). She is like a piece of art to him, a valuable object which he wants to manipulate. He considers her to be inferior and disapproves her behaviour and attitudes which he does not like. When describing what he likes about her he only talks about her breasts. Her presence, personality, behaviour nothing matters to him, “Sir, 't was all one! My favour at her breast,/ The dropping of the daylight in the West,” (Browning 25-26). The duchess was a pleasant woman, thanked anyone and smiled at everyone which the Duke did ...
"Schenck v. United States. Baer v. Same.." LII. Cornell University Law school, n.d. Web. 6 Jan. 2014. .
Wilson, James Q, “Against the legalization of Drugs,” Commentary, Feburary 1990. Rpt.in Current Issues and Enduring Questions. Ed. Sylvan Barnet and Hugo Bedau. Boston: Bedford/St. Martins, 1996. 365-78.
Military theory is an evolving set of fundamental thoughts, ideas, principles and rules, that are related to military matters, such as soldiers, armed forces, weapons, war or peace, and that military leaders have to study all along their careers in order to analyze, understand, explain and eventually address the challenges they face. So as to establish this thesis, it is first necessary to consider and define both terms military and theory, individually and together, and to determine the dominant trends of thoughts in military theory. Second, it is required to explain how the purpose of military theory equals its utility, and why it is mandatory for soldiers to study military theory all along their careers. Finally, it is crucial to understand that military theory is the basis of any military doctrine, strategy, operational art, and subsequently of any military action across the range of military operation.
Since Dusky v United States created the bench mark for CTS, there have been many other cases and Supreme Court decisions that have modified and refined CST. The three main cases that demonstrate this modification to CST are; Washington v Harper (1990), Riggins v Nevada (1992) and Sell v United states (2003). Each of these cases demonstrated the government attempting to restore the...
At least 16 million Americans regularly partake in illicit drug use, a global industry with an estimated 60 billion dollar annual revenue. This is not some recent occurrence, people worldwide have been using drugs recreationally for thousands of years. While most agree that regular drug use has a harmful impact on the majority of users, in 1971 President Richard Nixon went a step further by declaring drugs as “public enemy number one” and initiated a decades-long effort to reduce drug use and drug-related crime in America. This was period of legislation and funding towards the prohibition of illegal drugs, interdiction of smugglers, disruption of street markets, incarceration of dealers, and eradication of crops such as coca or marijuana in source countries. While the legislators may have been just in
The drug policy “War on Drugs” implemented by the criminal justice system the in United States has failed to address the war with the use of drugs in America. The United States of America has fought for over a century, and four presidents have staged this war that has yet to produce significant results. It is a war that the US was losing and drug abusers were all over hospitals, courts, and prisons. The use of drugs has ended in violent crimes that have always resulted into damaging neighborhoods in this country, and many children have been lost and abandoned due to drug abuse (Friman, 2008).
It is clear that smoking hurts people’s health and poisons the people around them. A ban on smoking in public would provide the environment nonsmoker, decrease cancer or others health problem, and it also will reduce a number of young people influence in society.
Finally, by not ordering the transfer of the domain names from Nissan Computer to Nissan Motor Co. the courts action was fair to both parties and the general public. Nissan Motor Co. had enough time to register their domain name; therefore they had no legal or ethical rights to acquire the domain names from Nissan Computer. Overall the courts acted in good faith to both parties and the society as a whole.
World-Wide Volkswagen and Seaway demonstrate that there are limits to the exercise of personal jurisdiction over non-resident defendants. The decision recognizes that companies manufacture goods movable in interstate commerce and that any particular good can settle in diverse physical locations. Although the manufacturer knows that the product is movable, such as a car, that awareness alone is inadequate to provide a basis for the exercise of personal jurisdiction by a remote foreign court; thus they cannot be sued in that state.
In order to understand the War on Drugs, people must understand how it was caused Drug abuse is the cardinal reason why a drug war is crucial. Drug abuse is the “harmful, non-medical use of an illegal substance” (Croft 12). According to many polls, the drug abuse problem has been rising
Those that agree with a ban would support for several reasons. They would first say that the ban would discourage more people from smoking since it would limit their ability to do so any time they want. There is very good reason considering if...
Those opposing a smoking ban say that freedom of choice would be affected by such legislation. Some people against a ban say that smoking bans damage business. A smoking ban could lead to a significant fall in earnings from bars, restaurants and casinos. Another argument is that the smoker has a basic human right to smoke in public places, and the ban is a limitation for smokers’ rights. Businesses, smokers, publicans, tobacco industries, stars, and some of the non-smokers oppose public smoking ban. Smokers light a cigarette because they need to smoke, not because they want it, because nicotine is physically addictive. Therefore, some smokers think that the public smoking ban is oppressiveness. They see the ban as a treatment to smokers as second-class citizens. Smokers agree that the smoking ban benefits the world, but cannot support the ban, because effects of nicotine obstruct them.