Fall 1996

Why do you call an Oreo™ an Oreo™? Why do you go to The Gap? Do you own a Cabbage Patch Kid™ doll? Do you prefer Haagen-Dazs™ or Carvel™ ice cream products? If you recognize these names and products then you have become familiar with the advertising and marketing of a company's trademark.

What is a trademark? A trademark can be any word, name or design used by a company to identify or distinguish goods or services from other companies. Under the law, a trademark is a property right, which means the owner of a trademark (often called a mark), owns all rights to use the mark in TV, radio, newspaper and other advertising. The owner has an exclusive right to use the name, (such asOreo™), symbol or logo (such as the rainbow-colored peacock used by NBC-TV)

A business uses a mark because (1) it serves to identify a product or service and in doing so establishes a difference between one company and another; (2) it establishes a perception that products which use such a mark will have a certain level of quality, which helps build a good reputation with customers; (3) it helps the company to sell its products and through recognition raises a consumer's awareness of the product and the company.

A consumer may not know the name of the company that manufactures Rice Krispies™ cereal, but most people who eat that product would say that Rice Krispies™ is a tasty breakfast food. That satisfaction with the individual product, in this case Rice Krispies™, establishes a positive view of the company that produces it, Kellogg's, and develops a good reputation among consumers. A product that does not meet a certain level of quality, will develop a negative reputation with consumers and they most likely will not purchase it again.

Many times, consumers use a mark as a standard for determining a high quality product. Most people know very little about the manufacturing of Rolls-Royce ™ automobiles but are aware that the Rolls-Royce ™ name is the standard for high quality in automobiles. In fact, it is common to hear consumers discuss a particular non-automotive product, for example a bicycle, as the "Rolls-Royce of bicycles."

Consumers also use the mark associated with failed products as a short-hand way to identify poor quality products. For many years the name "Edsel" was used to ridicule products which failed to achieve consumer acceptance. The "Edsel" automobile was manufactured by the Ford Motor Company during the 1950's. Consumers rejected it, although today the Edsel is viewed as a product that was ahead of its time.

Companies with valuable marks such as Air Jordan™ sneakers spend a lot of money promoting their marks. It can take years and millions of dollars in advertising to develop a mark's reputation in the mind of a consumer. Once a company acquires a certain reputation it must be careful to protect that reputation. There are many court cases that deal with the question of whether one company has infringed or violated the rights of another company.

Infringement occurs when a second company decides to use a mark that is similar to another company's mark and is likely to cause confusion in the mind of the consumer. One lawsuit involved a firm that owned the rights to the mark Chicken Wing Dings™ which claimed that another company infringed their mark by using the name Chicken Wing Flings. What do you think? Are the two marks similar enougb to cause confusion in the marketplace?

A company can register or file its name with a government agency in Washington, D.C., under the federal law governing trademarks, or separately register a mark in each state in order to provide notice to the public. Traditionally, a company develops rights in its mark through use in the community or throughout the country.

The use of famous marks in everyday conversations, plays, newspapers, movies and books, reflects the importance of trademarks in everyday life. Trademarks make it easier for people to identify quality products and for companies to sell those products.

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The Honorable Anne E. Thompson, chief judge of the U.S. District Court for the District of New Jersey, believes that a judge brings to the bench his or her unique perspective and experience.

From participating in the civil rights movement while pursuing her law degree, to raising a family while practicing law during a time when very few women were even in the field, to working as both a prosecutor and public defender, Judge Thompson brings a wealth of life experiences to her job as the head of New Jersey's federal judiciary.

Thompson has been a federal judge since 1979 and recently was named chief judge in the District of New Jersey a position that is obtained by seniority and held for seven years. She presides at the federal courthouse in Trenton and, as chief judge, is responsible for the administration of the court.

The types of cases that Judge Thompson might hear are limited by the federal court's jurisdiction. Federal courts usually hear matters involving the Constitution, laws passed by Congress, cases where the United States is involved as a party, cases involving foreign diplomats and cases involving parties from different states. These cases can be either civil or criminal proceedings.

A Modest Role Model

Thompson credits her parents for instilling in her a desire to learn. She attended Philadelphia High School for Cirrus, an academic high school for college bound students, and from-there moved on to Washington, D.C. where she earned a bachelor's degree in English from Howard University in 1955. After graduating, Thompson taught at the university for three years before deciding to go to law school.

Thompson was pursuing her law degree during the height of the civil rights movement. She has a clear memory of the March on Washington in the summer of 1963 where approximately 250,000 people heard Dr. Martin Luther King Jr. give his now famous "I Have a Dream" speech.

"The columnists wrote the next day of what a demonstration of brotherhood it was and that this was an example of the best that America could be," she recalled. Thompson remembers walking out on the mall overlooking the Washington Monument at lunchtime and sensing the excitement and spirit of hope that the march gave to the civil rights movement.

"It was a marvelous display of brotherhood with people of all races mixing together with nothing but goodwill," she said. "They expected violence and disorder, but there was none.

Thompson believes that her experience of being in the midst of the movement for equal rights for all U.S. citizens helped shape the future course of her life and career. She acknowledges that it taught her to recognize and appreciate the courage of anyone who stands up for what he or she believes, no matter the consequence. "Each one of us forges ahead as best we can," she contends. "We always hope we're conducting ourselves in a way that would be responsible to our heritage and to those around us."

While she does not consider herself a role model, she certainly has made a point of spending time encouraging students to learn about the legal system. At a recent New Jersey State Bar Foundation MENTOR trip, Thompson made visiting Trenton High School students feel at home as they sat in on a trial to see, firsthand, justice at work. She took the time to explain the judicial process by having key players in the trial introduce themselves. She then took the students back to her chambers for a behind-the-scenes look at the court.

The students' teacher, Magnolia McGlothen, remarked that the students were amazed at how down-to-earth Thompson was. The students, who thought she would be stuffy learned they shouldn't base their perceptions of judges and the legal system by what they see on television, she said.

If not a role model, Thompson is, at the very least, one of the few women who have made it to the top of their profession. Of the 18 federal judgeships in the state of New Jersey, only three are held by women, two of whom, including Thompson, are minorities. Thompson attributes this to the fact it has only been in the last 10 to 15 years that women and men have been entering law school in equal numbers.

"I predict that female judgeships will someday be equal in number to men as more women graduate from law school," she said.

Thompson acknowledges that women who choose to have families are at a disadvantage because the burden of child rearing in today's society still falls largely on women. Although her children are grown now, she admits that finding the balance between career and family was hard.

What society does about child rearing in the future, Thompson feels will have a direct result on female judgeships. "Until the burden can be shared through societal institutions and fathers taking a greater responsibility, women lawyers will still be handicapped and the process of achieving their goals will be compromised," she said.

Although it may be more difficult for women to reach the level of success that Thompson has, it is not impossible. Learning discipline and developing long-range goals are Thompson's advice to all students, male or female. "My advice to young people is to defer short-term gratification for long-term goals," she said.

"It is never too soon to start planning the kind of future you want to have and working toward your goals.

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Today punishment is perceived in only a few ways. If you do something wrong, you could be fined, go to jail, your parents called or other civilized methods of repaying society. Our justice system hasn't always been like this. At one time, there were several strange punishments for those who disobeyed the law.

In the period between 1500-1700, the stocks were a popular method of punishment in our country. Thieves, wife-beaters, gamblers, drunkards, fortune-tellers, and other offenders were set in the stocks for hours at a time. In this method, criminals were put in front of the townspeople to be humiliated. The stocks were usually found in the town square, or another open area.

Another punishment for criminals was to be set in a device called a Brank, or Gag. This was an iron cage that weighed a lot, which covered the whole head and had a tongue of iron to be put in the mouth. If the offender attempted to speak with this contraption, it was very painful. This punishment was reserved mostly for women who talked too much, but men also were subject to the Brank for being unruly or making mischief.

The church is actually responsible for some of the harshest laws in this country. Offenders were known to have their tongues pierced with a spike, or burnt with a scalding iron for not going to church. Some were branded on their forehead, like a cow, with the letter "B" for blasphemy. Finally, in some places, if somebody stole, they would be burned and whipped, then shown to the entire community

These laws were finally cast away after the signing of the Bill of Rights when a prohibition against cruel or unusual punishment became the supreme law.

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Imagine one week before the league championship your coach announces random drug tests for your team. You don't take it seriously, but the next day the star player tests positive and is suspended from the team, ruining any chance for the title.

It happens all the time in the pros: Roy Tarpley, Dwight Gooden and Lawrence Taylor all have been suspended for drug use and their teams have suffered.

The same thing can happen in schools. On June 26, 1995 the United States Supreme Court concluded that random drug tests of high school athletes did not violate the Fourth Amendment's protection from "unreasonable searches." This decision followed the appeal of James Acton, an eighth grader from Veronia, Oregon. He challenged his school's drug testing policy, claiming that it violated his Fourth Amendment rights.

The Fourth Amendment protects you against unreasonable searches and seizures. It requires that the police have "probable cause" and secure a search warrant prior to executing a search or seizure.

Acton believed that the random testing for drugs, without probable cause and without a warrant violated his constitutional rights. He refused to participate in the football program due to the testing, and filed suit against the school district.

The case posed the question to the court: Can a school infringe a student's Fourth Amendment rights for the purpose of maintaining discipline and preventing actual drug use in the school? Justice Scalia answered "yes." He concluded that students are entrusted to public schools by their parents and the schools therefore act as a substitute parent.

Children have some independent rights, but fewer rights than adults. He stated that students and athletes "have a lesser expectation of privacy" and therefore the intrusion on the student's constitutional rights is acceptable. Random drug testing of athletes can be instituted in the public schools.

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In high school, books are read by every English class, freshman through seniors. There has been a lot of controversy over certain books from concerned parents and distressed school boards.

Books such as Huckleberry Finn,an American literary classic by Mark Twain, have been banned in certainschool districts becouse the materail has been considered "offensive?" The term offensive is subjective and can mean different things to different people.

Even though administrators would want many different kinds of ideas to be available and attainable to students, attempts to ban books from high school libraries are being made. Although it has been argued that this policy violates the First Amendment of the U.S. Constitution which states that congress can not prohibit free speech and therefore cannot censor, cases have gone to the Supreme Court where decisions to ban books have been allowed and ruled constutional

So, when you read Huckleberry Finn or the 14th century classics, The Canterbury Tales, remember that people had to fight to allow them to be read in public schools. You may not appreciate the novels themselfs, but appreciate how they reflect the principles of the First Amendment.

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Pretend that your teacher just gave you an assignment to write a paper on elephants in India or the life cycle of a fruit fly. So, what's the first thing you do? Why you turn to the encyclopedia, of course.

Buried between the pages of World Book and Encyclopedia Britannica are hundreds of facts on both subjects. What you choose to do with those facts can make the difference between landing a good grade and landing in the principal's office.

If you sit down with a pen and paper and start copying out of the book word for word, and then turn the information in with your name on it, you are definitely headed for the principal's office. Copying from any book, magazine, newspaper, or even the notes inside a CD, and passing it off as your own is called plagiarism.

"We teach children to copy information when they are very young," said Sandra Haftel, a seventh grade teacher at Brookside Middle School in Allendale. "What we don't teach them is the difference between gathering information and copying word for word and calling it your own."

Most written material is protected by a copyright, which means that the author or the publisher owns the words. If you copy those words without attributing them to their owner, you are breaking the copyright law. If the owner of those words wanted to, they could take you to court and you could be fined for using them.

While the publisher of World Book probably won't be coming to your school and reading your reports, teachers can usually tell if you have been plagiarizing. If you are caught, you might have to stay after school and you will probably have to write a whole new paper. If you don't get caught, your paper may be done, but you won't learn anything about writing or elephants.

"It's not too hard to tell if a student plagiarized," said Haftel. "The sentence structure is just too good and the words they use are beyond their vocabulary. It just doesn't sound like they wrote it."

Changing a few words in a sentence, or rearranging a paragraph doesn't mean you're not plagiarizing. If your paper on fruit flies sounds anything like the encyclopedia, it's not your own work.

So what if you find a really great fact about elephants in a magazine article? Well, you can use the information you find, that's called research. What you have to do to use it legally, is take those facts and use them to create your own sentences from them.

The goal of a research paper is to think for yourself, Haftel explained, not simply to see how much information you can copy from a book.

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The following is a case written by Susan Mock's former 4th grade class at Union Avenue School in Margate. This case was written in conjunction with the New Jersey State Bar Foundation's Law Fair Competition and was among the winning cases of 1995.

Jenna Thomas, a 10 year-old, fourth grade student at Ocean Avenue School is suing the school for sexual discrimination.

On the first day of the school swim team's competitive season, all the boys on the team came to school with their heads completely shaved. They planned to stay bald for the entire eight-week swim season. Jenna decided she liked the way the boys' bald heads looked. The next day, Jenna, who is not on the swim team, came to school with her head shaved.

In their student handbook, Ocean Avenue School has a rule that forbids "extreme clothing or hairstyles that might distract students from the learning process. " Although none of the boys were punished for violating the school code, Jenna was sent home. She was suspended until she either agreed to wear a wig to school or her hair grew back. Jenna and her mother sued the school for discriminating against Jenna because of her sex.

Jenna's mother, Rebbeca Thomas, stated that although she is not happy about Jenna's choice in hairstyle, she supports her right to wear this style to school. She is not convinced that no hair at all can be considered extreme or distracting, especially since the boys on the swim team were permitted to come to school this way. She perceived the look as neat and clean, suitable for either a girl or boy, and argued that a wig would be more distracting to both Jenna and her classmates.

Mrs. Thomas feels that Jenna deserves fair and equal treatment in school and girls should follow the same rules as boys.

The principal of Ocean Avenue School, Mrs. Nicholas, believes that Jenna deliberately chose to challenge a school rule to gain attention. She feels it is the school's right to determine what is distracting and what is permissible according to the student manual. Mrs. Nicholas contends that Jenna and her mother knew about the dress code when school started in September.

THE ISSUES:

Is Ocean Avenue SchooI denying Jenna a fair and equal educational opportunity? Is she being discriminated against because she is female? Are the terms of Jenna's suspension reasonable? Is Jenna's bald head against the school dress code? Should the rule be interpreted differently for swimmers?

THE LAW:

Public school districts are required to offer educational opportunities to qualified students regardless of race, religion, ethnic background or sex. Otherwise, they are ineligible for state and federal funding.

WHAT DO YOU THINK?

Is this a case of sexual discrimination? Is Jenna's sex an important factor in the school's decision about her shaved head? If Jenna had been a male and not on the swim team, would the results have been the same? You be the judge.

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Do you have the right to prevent your parents from going into your room? The answer is "NO" according to the Court of Appeals of Texas. This court issued an opinion in the case of Grays v. State in August 1995. The court unanimously concluded that a mother can give police the right to search her child's locked bedroom.

This case involved a young adult named Kizer Kip Grays who lived in his parent's house and paid them rent. He kept his room locked so that his young nephews could not enter and disturb his personal possessions. His parents told him he could keep his room locked to keep the boys out, but his mother had a key to the room which she used when she needed to clean it.

The police suspected Kizer Grays of being involved in the crime of attempted murder. They went to the Grays' house and asked his mother for permission to search Kizer Grays' bedroom. She gave her permission and unlocked the door.

The police searched Kizer Grays' room and found the weapon used in the crime. Kizer Grays was convicted of attempted murder in Texas Superior Court and sentenced to 20 years in prison. He appealed his conviction to the Court of Appeals, claiming that the search of his room without a warrant was illegal because he did not give permission to search the room. His attorney argued that the Fourth Amendment to the U.S. Constitution gave him the right to privacy and protected him from "unreasonable searches."

The Fourth Amendment states that "people have the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. The amendment states that this right shall not be violated unless there is "probable cause" to conduct a search and, based upon that probable cause, a judge has issued a warrant permitting the search. Probable cause means that the judge has a good reason to believe that evidence of a crime will be found at the place to be searched.

Warrants are issued by judges and, according to the Fourth Amendment, they must specify the place to be searched, the items to be seized, the time the warrant is to be executed and the person(s) to be searched and/or arrested.

The United States Supreme Court has ruled that if the police obtain evidence of a crime without a warrant, then the search is in violation of the Fourth Amendment and the evidence seized will be inadmissable, or excluded, in a state court. This is known as the exclusionary rule. Searches and seizures conducted without warrants are generally viewed as unconstitutional. Arrests made and evidence seized without warrants are usually declared by the trial judge as being in violation of the Constitution. Kizer Grays' room was searched without his permission and without a warrant. Therefore, Grays' attorney argued that the gun found in his room should be eliminated from evidence.

The Supreme Court has created exceptions to the Fourth Amendment requirements. Searches without warrants are permitted in some situations. One of the circumstances that make a warrant unnecessary is consent. For example, if a person freely gives permission to a search, the search is legal even though a search warrant has not been obtained.

The Court of Appeals of Texas ruled that Kizer Kip Grays' mother had authority to give permission to the search of his room. Kizer Grays paid rent to his parents and had a lock on the door, but he knew his mother had a key that she used to enter the room when he was not there. His mother owned the house and had the ability to enter the room. The Court ruled that her permission to search her son's room was sufficient. Thus, a search warrant was not needed by the police and the gun was admissible as evidence of the crime of attempted murder. Kizer Kip Grays conviction was upheld, and he remains in jail.

Michelle Brennan teaches a law class at Rumson-Fair Haven Regional High School Rumson.

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In November 1995, New Jersey voters said "yes" to one of their Favorite candidates-the environment.

New Jersey voters showed their dedication to preserving the state's natural and historic resources by passing the Green Acres, Farmland and Historic Preservation and Blue Acres Bond Act of 1995. This new law permits the state to sell $340 million in bonds to acquire and develop land for scenic parks, to fund much-needed wildlife refuges, and to save New Jersey farmland, historic sites and flood areas from development.

Voters passed the bond act after Governor Christie Whitman signed a bill which placed the issue of whether or not the bonds should be sold as a referendum on the November 1995 ballot. In elections, sometimes voters are asked to approve referendums in addition to voting on candidates running for public office.

During the November campaign, New Jersey's Commissioner of Environmental Protection, Robert C. Shinn Jr., stressed how important this bond issue is to the state's environmental health.

"Green Acres funds are vital to protecting our rapidly disappearing open spaces, parks, historic sites, farms, greenways and natural areas which will serve our children and their children for generations to come," said Shinn.

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bill - a draft of a proposed law presented for approval to a legislative body.

bond - a certificate of debt issued by a government or corporation guaranteeing payment of the original investment plus interest by a specified date.

copyright - protects all written material from theft, governed by law.

exclusionary rule - if police seize evidence without a warrant or probable cause, in violation of the Fourth Amendment, the evidence will be excluded in court.

infringement - the use of a trademark which is similar to another company's trademark to cause confusion in the minds of consumers.

jurisdiction - authority to interpret or apply the law.

party - a participant in a civil case. A party can be a person or corporation.

plagiarism - taking someone else's written work as your own.

probable cause - a law enforcement official has good reason to believe that evidence of a crime will be found or a person should be arrested or searched.

referendum - popular vote on a measure submitted by a legislative body.

search warrant - document issued by a judge that allows the police to search a particular area or person. Must specify place to be searched, items to be seized, time to be executed and person(s) to be searched.

trademark - any word, name or design used by a company to identify or distinguish its good or services from other companies.

unreasonable searches and seizures - searches conducted without obtaining a warrant and without probable cause.

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