CONTACT: Katy Bennett, (859) 257- 1754 ext. 255
Heather Russell, (859) 257- 7938
Newest Kentucky Law Journal Now On Sale
LEXINGTON, Ky. (March 25, 2009) – The second book in the 97th volume
of the Kentucky Law Journal is now available for purchase. Since 1913, the Kentucky
Law Journal has published scholarly works of general interest to the legal community
and is the 10th oldest law school journal in the country. It is produced by students of the
University of Kentucky College of Law under the direction of an 11-person editorial
board and with the advice of a faculty member. The Kentucky Law Journal is published
quarterly by the College of Law.
Articles and notes featured in volume 97, No. 2 are as follows:
Thomas E. Rutledge : “The 2007 Amendments to the Kentucky Business
This article examines the 2007 amendments to Kentucky’s various business
entity statutes. The author argues that the amendments reflect not a great step forward
in innovation, but rather an effort to step back, to assess Kentucky’s position, and to lay
the framework for future innovation and development. By and large the amendments
relate not to grand topics, such as enabling new or recasting old forms of business
organizations, but rather ensure that the laws are effective and eliminate and reconcile
meaningless inconsistencies between statutes.
Ann Bartow: “The True Colors of Trademark Law: Greenlighting a Red Tide of
Anti Competition Blues”
The elevation of color to stand-alone trademark status illustrates the unbounded
nature of trademarks within the judicial consciousness. The availability of color-alone
marks also facilitates the commoditization of color in ways that complicate the
development and distribution of products and services that use color for multiple
purposes conterminously. The economic case for color-alone trademarks is severely
An Equal Opportunity University
undermined by careful observation of the ways that colors are actually deployed in
commerce, which makes it clear that the trademarks of multiple goods and services can
utilize the same color to telegraph the same message without confusing anyone or
diluting the commercial power of textual or symbolic trademarks.
The primary doctrinal arguments against recognizing color-alone trademarks
raised here include aesthetic functionality, the related concept of communicative
functionality, uncertainty about scope, and color exhaustion. Colors always add
aesthetic value, and often communicate messages unrelated to commercial source.
Coupled with the uncertainties related to color-alone marks and the risks of color
exhaustion, the anticompetitive effects of color monopolies outweigh any possible social
benefit from a regime that permits registration of color-alone trademarks.
It is further argued that if any court attempted to declare a color "famous" for
dilution purposes, thereby granting a commercial entity broad right to monopolize the
color well beyond the context in which it is used in commerce, there would be a furious
backlash against this ill-advised doctrine. The palette of commercially appealing colors
is far more limited than the dictionary of attractive and usable words, and could be
radically depleted by deployment of dilution precepts rather quickly. Courts that
recognize this may relegate color-alone marks to some second class status that is
ineligible for dilution protections, preserving color availability somewhat but further
warping trademark doctrine.
Monica Hobson Braun: “Rock of Ages: Why Kentucky’s Use of the
Abandonment Test in Deciding the Ownership of Mineral Refuse Is Inadequate”
“Rock of Ages” addresses the ownership of mineral wastes, an issue of growing
importance as coal operators continue to remine mineral wastes to obtain valuable coal.
The note focuses on Kentucky’s reliance on the abandonment test to decide such
disputes and examines the inadequacies of that approach. After considering how other
jurisdictions resolve ownership questions, the note advocates the adoption of a hybrid
test, which first focuses on the status of the waste and whether it is intermingled with
the earth and concludes by permitting parties to offer subjective evidence that may
rebut the presumption created by the status of the wastes.
Wes Harned : “Telemarketers Gone Mobile: The Telephone Consumer
Protection Act of 1991 and Unsolicited Commercial Text Messages”
Text messaging is fast becoming one of the dominant forms of mainstream
mobile communication. As the popularity of this technology grows, so too will its use by
businesses and telemarketers seeking ever more efficient and effective means of
accessing consumers. Throughout the 1980s into the early 1990s telemarketers
bombarded U.S. households with intrusive and annoying telephone calls, but the
Telephone Consumer Protection Act of 1991 (TCPA) sharply curbed such practices.
Now the question becomes whether the TCPA can supply a similar solution for the
problem of unsolicited commercial text messages.
“Telemarketers Gone Mobile” explores this issue. The author uses the language
of the TCPA and other sources of relevant information to assess the merits of the
arguments put forth by the only two courts so far to address the issue. In the end, this
note approaches the problem from an angle not taken by either court and proposes a
solution to the question of whether the TCPA can be applied to curb unsolicited
commercial text messages.
Jacinta Feldman Manning: “Insuring Quality: Restrictions on Legislative
Control of Partner Benefits at Kentucky’s Public Universities”
Domestic partner benefits are becoming more common at colleges and
universities across the country. Schools recognize these benefits are a way to stay
competitive in the race to recruit and retain the best and brightest teaching staff. But as
domestic partner benefits grow in popularity, so too, are state laws and amendments to
state constitutions that outlaw same-sex marriage. “Insuring Quality" examines the
controversy as it has unfolded in Kentucky, and argues that any limitation, statutory or
otherwise, that would prohibit a university from offering benefits to anyone it chooses
would violate the academic freedom found in the First Amendment of the U.S.
Constitution, as well as the associational freedom of the U.S. Constitution. The note
discusses legislation introduced by members of the Kentucky General Assembly, and
illustrates how any such legislation, which limits a university’s ability to determine for
itself what benefits it offers, would violate three of the four Academic Freedoms that the
Supreme Court established in Sweezy v. State of New Hampshire. The Supreme Court
has held that universities must be autonomous from legislative control so they can
promote and encourage the open discussion that is crucial to both the First Amendment
and an educated society. The note does not argue that the benefits are a right that
every university must extend to its faculty and staff, but that they have a right to choose
to do so and that under the Constitution, the legislature can pass no law to usurp that
Kentucky Law Journal subscriptions are available on a volume basis and single
issues are now available for purchase. The price of a single subscription is $42.00 per
year or $10.50 per issue. Contact the Kentucky Law Journal at 859-257-4747 or
firstname.lastname@example.org for more information.
We "see blue" at the University of Kentucky. We're home not only to powerhouse basketball and the best of intercollegiate athletics; we're also
nationally ranked in more than 70 academic programs. We're charting an aggressive, exciting path toward becoming a Top 20 public research
institution. “see blue.” is a lot of things, but most of all it's about helping students realize their potential and harness the power of their
dreams. For more about UK’s efforts to become a Top 20 university and how we "see blue," visit