NEWS   www.uky.edu/PR
CONTACT: Katy Bennett, (859) 257- 1754 ext. 255
         Heather Russell, (859) 257- 7938


FOR RELE...
undermined by careful observation of the ways that colors are actually deployed in
commerce, which makes it clear that the...
bombarded U.S. households with intrusive and annoying telephone calls, but the
Telephone Consumer Protection Act of 1991 (...
We "see blue" at the University of Kentucky. We're home not only to powerhouse basketball and the best of intercollegiate ...
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Newest Kentucky Law Journal Now On Sale

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Newest Kentucky Law Journal Now On Sale

  1. 1. NEWS www.uky.edu/PR CONTACT: Katy Bennett, (859) 257- 1754 ext. 255 Heather Russell, (859) 257- 7938 FOR RELEASE 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 Entity Statutes” 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
  2. 2. 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
  3. 3. 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 decision. 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 klj@uky.edu for more information. ###
  4. 4. 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 www.uky.edu/OPBPA/business_plan.htm

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