Michael Silver
Spring 2002
Professor Dawn Nunziato
PROPERTY OUTLINE
I. Adverse Possession and Intellectual Property
A. Adverse Possession
1. Non-owner can acquire full ownership rights in real property if non-owner possesses property without permission by formal title owner in a visible manner for a period of time established by statute
a. Adverse possession claims can’t be made vs. government
b. Person who acquires property inherits encumbrances.
2. Elements
a. Actual Possession. Must assert general ownership of parcel in question.
· Differs f/ prescriptive easements, which are for limited use. Can be negative (right to prevent someone from doing something to their property) or affirmative (only acquired by prescription)
b. Open or Notorious. Notice given. Could be constructive.
c. Exclusive of the true owner. Cannot be shared with true owner. Often that use was personal and not shared by general public.
d. Continuous. AP must exercise control over property customarily pursued by similar owners. Not required to occupy land 24/7. Could be seasonal.
· Tackings doctrine: succeeding periods of possession may be added together, but only if successor in privity with original owner (i.e. original adverse possessor transferred title of property to successor)
e. Adverse. Without permission of true owner. 3 tests:
· Bad faith trespassor (subjective): adverse possessors know land not theirs
· Good faith trespassor (subjective): only innocent possessors can gain property via AP.
· Lack of permission of true owner (objective): state of mind irrelevant. Possession of another’s property presumed non-permissive. Majority rule. Exceptions: (1) use understood to be permissive (i.e. common area of shopping mall), (2) co-owners (need explicit ouster)
e. For the Statutory Period. Usually 10, 15, or 20 years. SOL often tolled if true owner under disability b/c of infancy, incompetency, insanity, imprisoned
3. Theoretical Justifications: AP uses land efficiently. Protecting settled expectations and reliance interest of adverse possessor. Substantive statement @ property: people should have some attachment to it. Don’t want idle land.
Nome 2000 v. Fagerstrom
· Nome owns land suitable for home sites and recreational activities, only in the warmer seasons. Fagerstroms use land. Nome 2000 waited to the last minute before they sued to eject Fs from their property. Fs built cabin on property and made improvements. Statutory requirement for adverse possession is 10 years. Court: F allowed others to pick berries/fish on property but doesn’t defeat exclusivity requirement. Expert said native Alaskans don’t relate to property in terms of exclusive property ownership. Hostility requirement: objective test used. Fs needed to show they used it w/o permission. If you possess mere portion of property described in deed, you get adverse possession of entire land.
B. Patent Law
1. Definition
a. Exclusive right to make, use or sell an invention to the absolute exclusion of others for a period of 20 years from the date of the application
b. Patent owner has complete right to determine who will have the right to make, use or sell the patented item during the patent term
c. Patent owner not herself required to put patent into use or allow others
2. Purpose
. a. Art. I, Sec. 8, cl. 8: empowers Congress to “promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their writings and discoveries.”
b. Patent law protects applications of ideas.
c. Laws of nature, natural phenomena and abstract ideas are exempt
3. Registration
a. Patent, unlike copyright, require mandatory registration to PTO.
b. Patent application must contain (1) specification à describing how invention works, and (2) claims à patentable features asserted new, useful and nonobvious advances beyond prior state of art
c. Patent obtainee must demonstrate she has developed:
(1) Subject matter requirement: must be a process, machine, manufacture or composition of matter
(2) Must be useful, novelty (new) and non-obviousness
4. Pros and Cons
a. Pros: incentive to pursue inventions. Incentive to publicly disclose invention rather than keeping trade secret. Rewards labor of inventor
b. Cons: creates artificial scarcity. Prevents others, even independent inventors from using process or producing product w/out permission of patentee.
Moore v. Regents of California
· Moore had leukemia, had spleen removed. Signed consent form. Doctor establishes cell line from his genetic material, patented w/ $3 million potential value. Moore sues for (1) breach of fiduciary duty (2) conversion (interferes w/ possessory and ownership interest in personal property). Court: yes on (1), but no conversion. Need to protect medical research f/ threat of liability. Patent law protects value added of researchers. Policy reasons (legislature should act). Dissent: sanctity of life argument. P has protectable property interest in body parts, entitled to share in profits.
C. Trademark Law
1. Definition
a. Property-like rights in words, colors, logos, etc. for those who use such marks in connection with their goods and services in commerce.
b. Protection lasts as long as owner uses mark to identify goods/services. Differs f/ copyrights and patents. Renewable 10-year terms for trademarks.
c. Generic marks (“All News Channel”) unprotected by TM law, descriptive = minimal protection, suggestive = strong, fanciful = strongest (Kodak)
d. Registration is optional, but only limited rights to continue to use in geographic area if don’t register
2. Causes of Action
a. Trademark Infringement. § 1125(a)
· Occurs when a party uses in commerce a mark (name, logo, color scheme) that causes, or is likely to cause, confusion, mistake or deception regarding the affiliation, origin or the nature/quality of goods/services
· Likelihood of consumer confusion is the key issue. Non-exhaustive factors: look at strength of P’s mark; similarity in marks; evidence of actual confusion; marketing channels used; D’s intent in selecting mark
· Initial interest confusion: use trademark in manner calculated to capture initial consumer attention, even if confusion doesn’t result in sale
b. Trademark Dilution § 1125(c)
· Weakening or reduction in the ability of a mark to distinguish the origin or affiliation of goods and services
· Don’t need to show evidence of actual consumer confusion
· Blurring: use of Ps mark by D to identify non-competing goods, which dilutes ability of public to identify the trademark. Ex. McSleep
· Tarnishment: Ps mark weakened through negative or unsavory association with or distortion of Ds use of the mark. Ex. candyland.com (Barbie)
· FTDA: (1) famous (2) commercial use in commerce (3) P’s mark is famous before D’s use (4) dilution
3. Domain Names
a. Unique addresses for websites that map onto Internet Protocol (IP) addresses
b. Must registration domain names with NSI, first come first served
c. Anticybersquatting Consumer Protection Act: amendment to Lanham Act
· Registrant had bad faith intent to profit f/ mark, including personal name
· No explicit commercial use requirement
Nissan v. Nissan
· Nissan Motor Corp. v. Uzi Nissan. Action for trademark infringement and dilution. Uzi promoted auto-related products through banner ads. Was there initial interest confusion? Court enjoins Uzi from posting auto-related banner ads. Narrowly tailored decision (doesn’t grant injunction to shut down Nissan.com)
Intermatic v. Toeppen
· Intermatic = manufactures timers/house alarms. Fanciful mark, $16 million advertising. Toeppen registered 240 domain names, intends to sell/arbitrage. Use of Internet satisfies use in commerce element. Intermatic’s ability to ID/distinguish goods diluted by Toeppen
D. Copyright (Information)
1. Definition
a. Right to prevent anyone f/ reproducing, modifying or distributing an original work of authorship for term of life of author + 70 years
b. Copyright protection subsists in original works of authorship fixed in any tangible medium of expression. 17 U.S.C. § 102. Includes literary/musical/ dramatic works, pictorial/sculptural, movies, sound recordings, architecture
c. Exclusive copyright (§ 106): Copyright includes right to reproduce copyrighted work, display or perform publicly, adapt, modify, distribute. Must be in tangible form. Ex. Nunziato’s lecture w/o notes doesn’t count
d. Registration not required, but incentives to do so
e. Copyright rests in owner or joint owners of work, not employee. § 201. Ownership can be transferred by means of conveyance.
f. Compilations (§ 103) à pre-existing material coordinated or arranged in order to constitute original work. Ex. Hypo about sports ticker email service
2. Limitations on Copyright
a. Ideas and discoveries excluded f/ protection. § 102(b).
b. Fair use (§ 107): in certain cases, exclusive rights limited or modified. Ex. criticism, educational purposes, scholarship, research, news reporting
c. Pre-existing data or material not copyrightable. (§ 103)
Feist Publication v. Rural Telephone Service
· Fiest created phone book w/ yellow and white pages in alphabetical order. Wanted to expand by adding 11 other counties, 10 consented but 1 didn’t. Rural refused to give information but Fiest took it anyway, did confirmation, thus 47,000 listings are identical. Rural sues for copyright infringement. Court: compilation of facts copyrightable, but facts alone cannot. Originality and creativity required by Supreme Court. Rural not entitled to protection. Copyright law rewards creativity, not hard work/labor (which Rural obviously put into it).
II. Warranty of Title and Recording Acts
A. Delivery
1. Required to effectuate the transfer to insure Grantor intends to part with property and clarify who owns it
2. Majority: deed not required to be physically delivered
B. Warranty of Title: provide assurances as between seller and purchaser
1. Present covenants – reached at time of conveyance
a. Covenant of seisin = grantor’s promise that he owns the property interest.
b. Covenant of the right to convey = grantor’s promise that he has the power to transfer interests purportedly conveyed to the grantee
c. Covenant against encumbrances = grantor’s promise that there are no mortgages, liens, unpaid property taxes, or easements that encumber property that aren’t in deed
2. Future covenants – promises that the grantor (seller) will take further steps to ensure that in future, purchaser will enjoy clear title to land being conveyed
a. Covenant of warranty: grantor promises to compensate grantee for monetary losses occasioned by grantor’s failure to convey title promised in the deed
b. General warranty deed: grantor covenants against ALL defects in title (even previous owners)
c. Special warranty: limits covenant to defects caused by grantor himself
d. Quitclaim deed: contains no warranty of title whatsoever. Seller transfers whatever property interest (and defects) he has.
e. Covenant for further assurances: seller must take further steps to cure defects in grantor’s title, such as paying adverse possessor to leave
3. Remedies
a. Seller has no right to sell à buyer can sue for breach of warranty
b. Closing à buyer can amount of money paid for property at time of closing
c. After closing à buyer gets market value at time
B. Recording Acts
1. Definition/Purpose
a. Enables buyer to see deeds on their property from grantor to grantee.
b. Functions as security to let buyer know they will really own the property
c. Provide resolutions to disputes between subsequent purchaser of real property interest and prior purchaser, with bad faith O (no warranties of title)
d. Strong incentive so as to put world on notice that they are purchasers or property, and put any foolish subsequent purchaser on notice
2. Conducting Title Searches: Each state has set up recording offices. System:
a. Tract system: indexing based on parcel itself. State divided into parcels of land w/ unique #s. Difficult to convert old system to tract system.
b. Grantor/Grantee indexes: Contains name of grantor/grantee; description of land; type of interest conveyed (including mortgages); date recorded. Names listed alphabetically and chronologically by last name
c. Title search: search seller’s chain of title in central registry of deeds.
3. Common law vs. modern rule
a. Common law: ‘first in time, first in right.’ Otherwise creates radical uncertainty for purchasers.
b. Modern rule: Subsequent purchaser w/o notice of prior conveyance who records first always wins
c. Do not protect vs. adverse possession, nor subsequent beneficiaries of gifts.
4. Types of Recording Acts
a. Race Statutes: as between successive purchasers, the one who records first wins. Places incentive on going to recording office. Very rare.
b. Notice Statutes: subsequent purchaser prevails over earlier purchaser if he did not have notice of earlier deed. Only have to take w/o notice.
(1) Actual notice
(2) Constructive notice = imputed f/ previously-recorded deed. (record)
(3) Inquiry notice = diligent subsequent purchaser would be put on notice
c. Race-Notice Statutes: subsequent purchaser must (a) have no notice of prior deed, AND (b) record before prior purchaser records
5. Shelter Doctrine
a. Allows bona fide purchaser (who is second purchaser) to sell to a third purchaser, even if third purchaser knew of earlier conveyance
Ex. O à A (no record)
O à X (no notice, but records)
X à C (knows of O—A conveyance)
O à X valid under race, notice and race-notice statutes. O à A conveyance is worthless. Under Shelter doctrine X ----> C OK b/c second conveyance is legal.
6. Wild deed: outside chain of title (usually when recorded too early)
Ex. O à X (no record)
X à A (records) WILD DEED
O à B (no notice of X—A)
Sabo v. Horvath
1959 Alaskans ----> Federal government
1964 Lowery occupying land
1965 Lowery applying to purchase
1967 Lowery seeking to purchase, hasn’t
1970 Gov’t has ‘recommended’ patent but Lowery still doesn’t have title
Jan. 3, 1970 Lowery ----> Horvath (quitclaim)
Jan. 5, 1970 Horvath records. Horvath has notice that title in land still held by gov’t
Aug. 10, 1973 Gov’t ----> Lowery (approves patent)
Oct. 15, 1973 Lowery ----> Sabo (quitclaim)
Dec. 13, 1973 Sabo records
Alaska has a race-notice statute. Quiet title action: court decides who has title btw prior and subsequent purchaser. Do Sabos have notice of wild deed outside their chain of title? Court: requirement would impose heavy burden on purchaser. Sabo takes w/o constructive or record notice. Horvath have remedies?
--Unjust enrichment (restitution)
--Estoppel by deed: If you purport to own something and convey property, but don’t really own it, when you do obtain title, it must be passed on
--Fraud. Elements are (1) material misrepresentation by Lowery; (2) justifiably relied upon by Horvaths; (3) damages.