2L-3L Upper Level Lesson Topics

This lesson offers an introduction to the doctrine of functionality, which operates as a defense prohibiting anyone from claiming an exclusive right in functional shapes, elements, or aspects of a product or product packaging. The protectability or registrability of a trademark depends on a factual determination of a design's functionality. The functionality doctrine attempts to weigh the public and private interest in copying design features against a trademark owner's inherently anticompetitive objective to avoid consumer confusion.

This lesson provides an analysis of the levels of distinctiveness and the requirements for the determination of whether a term chosen as a mark is inherently distinctive, must yet acquire distinctiveness, or is incapable of trademark protection regardless of distinctiveness. The lesson is intended as a review of material that is covered early in a Trademark Law course.

This lesson covers the "cybersquatting" provisions of the Lanham Act, 15 U.S.C. sec. 1125(d), which grant a cause of action to trademark owners against persons who, with a bad faith intent to profit, register, traffic in, or use domain names that infringe the rights of those trademark owners.

This lesson covers the types of marks that are deemed eligible for protection under federal and state dilution laws.  Although the focus is on eligibility under the Federal Trademark Dilution Act (Lanham Act section 43(c)), there is coverage of the different types of state dilution statutes -- those based on the earlier (1964) Model State Trademark Bill (such as Massachusetts), and those based on the federal statute.

Expense is a significant factor in any litigation. In deciding whether a judicial remedy is worth pursuing, parties must consider the cost of obtaining that remedy. The "American Rule" provides that parties to a lawsuit ordinarily pay their own attorney's fees, unless a statute or contract provides that fees can be shifted to the opponent. As it is fundamental to the litigation landscape, you may have touched on this doctrine in a number of your law school classes.

This lesson is intended for students who have studied restitution in class, and who wish to expand and refine their knowledge of the topic. The lesson deals with the basics of restitution (what constitutes "unjust enrichment"), and how is it measured. Little attempt is made to deal with more sophisticated aspects of restitution such as tracing, equitable liens, constructive trusts, etc.

Part I of this lesson is designed to explain why certain types of damage awards must be adjusted to their "present value," and to demonstrate precisely how those adjustments are actually calculated. Part II of this lesson addresses the related concept of adjusting future pecuniary damage awards to account for the potential effects of future economic inflation. 

This lesson covers the availability of non-economic damages; evidentiary issues in proving these damages; and issues in the argument to the jury of these damages. This lesson gives you an opportunity to explore the "how to" of non-economic damages, particularly damages for pain and suffering and mental or emotional distress. The lesson is designed for upper-level students in remedies, advanced torts, or trial practice courses. Students should have some basic knowledge of both tort law and evidence law. First-year students may find the lesson accessible by making use of the pop-up screens providing background on concepts and rules.

This lesson explores the many uses of the doctrine of election of remedies. Students will discover that attorneys will invoke the doctrine of election of remedies to enforce statutory or contractual exclusivity of remedy; to require plaintiffs to be bound by their intentional choice; to protect defendants from prejudice due to their detrimental reliance on plaintiff's actions; to eliminate double recovery for the same wrong; or to eliminate splitting and relitigation of claims. By working through the problems in this lesson, students will become familiar with the many different purposes of the doctrine and recognize the overlap with other remedial doctrines, such as waiver, estoppel, laches, and res judicata.

This lesson will cover two of the most powerful equitable remedies, the Constructive Trust and the Equitable Lien. This lesson is intended to supplement your classroom study of these remedial tools, and to explore their utility more deeply. Another lesson, "Equitable Protection of Restitution: The Accounting for Profits," is recommended. Taken together, students will learn when each form of relief is available, the advantages and disadvantages that each form offers and, when the choice is available, the strategic implications of choosing one form over another.

This exercise is intended for students who have studied this issue in class, and wish to refine and apply what they have learned. It includes several essay questions, along with their model answers.

This lesson deals with the requirements for preliminary injunctive relief, and includes both temporary injunctions and temporary restraining orders. It is designed for students who have already studied this material in class, and desire to refine their understanding of the matter by applying it in various contexts.

This lesson is one of a series on the topic of "Compensatory Damages." This particular lesson explores the differences among each of the three main types of legally-protected "interests" most commonly involved in any damages case: the expectation interest, the reliance interest, and the restitution interest. It is designed as an "Introduction" to the basic distinctions among each of these different interests, as well as a practical guide to determining when one interest should be asserted instead of another.

This lesson will cover the remedy known as the Accounting for Profits. Frequently, this remedy is not covered extensively in the classroom setting, probably because the accounting for profits often accompanies other remedies which receive greater attention. Consequently, this lesson is designed to provide basic coverage of this remedial option. Another lesson, "Equitable Protection of Restitution: The Constructive Trust and Equitable Lien" is recommended. Taken together, students will learn when each form of relief is available, the advantages and disadvantages that each form offers and, when the choice is available, the strategic implications of choosing one form over another.

In this lesson, we examine the concept of equitable discretion and gain insight into equitable precedent on the subject. This lesson was designed for use by students who have completed study of this topic in their basic remedies class, and want to further refine and expand their understanding of the concept.

This lesson reviews the process of tracing wrongfully diverted money or property through a series of exchanges. Students are expected to have a basic familiarity with in-specie remedies such as replevin and constructive trust. The lesson provides problems for students to consider practical evidentiary issues in locating and proving the identity of property and to practice the application of rules for tracing funds into and out of commingled accounts. The lesson will be most useful for review by students in remedies, debtor-creditor or bankruptcy courses.

This lesson is a companion tutorial to the CALI lesson "Recovery of Attorney's Fees." This lesson reviews the policy debate over the American Rule vs. the English Rule. In this lesson, you can judge a debate regarding which approach to attorney's fees rules is better policy.

This lesson is intended for students who have studied irreparable injury in class, and want to expand and refine their knowledge.

This lesson covers the defense of laches to an equitable action. Students will learn when the defense applies, the elements necessary to establish the defense, and how courts consider the defense. Students will also learn to distinguish laches from the related defenses of Estoppel and the Statute of Limitations.

This is the first in a series of lessons on the topic of "Compensatory Damages." It is designed as an "Introduction" to the overall concept of "compensatory damages" as well as to the key terminologies that are typically associated with these types of damages. For beginning students, this Lesson should be completed first, before proceeding to any other Lessons that address more complex damages issues, as it contains a thorough presentation of the various terminologies and concepts that are unique to this specialized area of the law.

This exercise begins with some general background questions to help students place administrative agencies within the greater Constitutional scheme. These questions also address the various powers agencies wield, and the ways they are created. Then the exercise examines sources that offer specific details on individual agencies; it goes on to briefly discuss procedural rules, policy statements, and the process of promulgating regulations.

This lesson will introduce you to researching foreign law.

This lesson will introduce you to the technology-based emissions limitations that apply to stationary sources regulated under the Clean Air Act that emit hazardous air pollutants (HAPs). It can act as an introduction to the subject, or you can use this lesson as part of your review of Clean Air Act stationary source regulations at the end of your studies of the Clean Air Act or before your final exam.