What is property? Definition - Rights among people concerning things.

Bundle of sticks - The concept that property is a bundle of discrete rights associated with a thing.
o Four Sticks in the Bundle of Property Rights: Right to 1.) Use, 2.) Possess, 3.) Transfer, and 4.) Exclude
Who defines property rights? - Natural law v. positivism.
Natural law - certain rights exist naturally as a matter of fundamental justice regardless of government action
Positivism - property rights that exist only to the extent that it is recognized by the government
Doctrine of Discovery: Discovery gave title to the government
by whose subjects, or by whose authority it was made against all other European governments which title might be consummated.
- If the following two elements were met, a European government acquired title to the exclusion of all other European governments:
(1) Discovery of lands not previously known to Europeans or not inhabited by Europeans
(2) Possession of those lands
- Doctrine does not govern the relative property rights between the discovering government and the original inhabitants of those lands.
Discovering government must determine how to resolve the conflicting claims of title between original inhabitants and the discoverer.
Principle 3 - Discovering nation has the sole right of acquiring the soil from the natives
Rights of the original inhabitants were to a considerable extent impaired
Johnson v. McIntosh The right of Native Americans to freely transfer their lands was not recognized by the U.S. courts.
Indian title of occupancy - Justice Marshall described the Native Americans as the rightful occupants of the soil, with a legal as
well as just claim to retain possession of it. -
The United States owns absolute title to tribal lands, subject to the Indian title of occupancy.
o The United States government alone has the right to extinguish Indian title by either Purchase or Conquest
They could transfer the title to their lands to one entity and one entity alone the US government.
The Origins of Public Land Ownership Original 13 states acquired title to the lands within their borders.
The federal government acquired title to the lands of the original colonies lying west of the original colonies as Public Domain Lands
The federal government continued to add to these public domain lands, i.e., Louisiana Purchase
Land Ordinance of 1785 established a system of surveying the federal public domain lands
With the intent of selling the lands once they were surveyed to raise funds for the federal government.
Two Classes of Public Lands
- J us privatum: a right of private ownership - The government has the power to convey its title to these types of land to third parties
- J us publicum: a right of public ownership - Some property, primarily navigable waters and their beds or banks up to the high water mark,
are owned by the Crown as the representative of the nation and for the public benefit.
If conveyed, legal title remains encumbered by the jus publicum, the right of the people to use the property for its public purposes, i.e.,
the right to use navigable waters and their beds for public passage, commerce and fishing.
Public Trust Doctrine - Arises from the concept of jus publicum - As a general rule, these types of lands cant be conveyed
If these types of lands are conveyed, the conveyance remains subject to the rights of the public to use the lands.
Illinois Central RailRoad v. Illinois - A states title to lands lying under navigable waters is a title different in character from that which the
State holds in lands intended for sale. - It is a title held in trust for the people of the State that they may enjoy:
The navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or
interference of private parties. - The government must preserve such waters for the use of the public.
Two exceptions: (1) grants of parcels of lands under navigable waters, that may afford foundation for wharves, piers, docks and other
structures aiding commerce, and (2) grants of parcels that, if occupied, do not substantially impair public interest in lands and waters remaining.
The Right to Exclude: Trespass Each owner has a right to exclude any other person from his property
The USSC has characterized this right as one of the most essential sticks in the bundle Kaiser Aetna
In practical terms, this right is asserted through the tort doctrine of trespass
POLICY: Society has an interests in deterring trespass because society has an interest in preserving the legal system
- The law of trespass is intended to protect and enforce the landowners right to exclude others from her property.
Landowners are less likely to engage vigilante justice
Judge Posner argues that by giving a land owner the unqualified right to exclude everybody else from using their resource, society
takes a necessary step in maximizing the economic value of land.
State v. Shack - NJ Supreme Court, rather than applying an absolute test, weighed the competing needs and interests of the parties:
The landowners right to exclude vs. the workers privacy rights, right to dignity, and needs for services and assistance

Intentional Trespass: Rest. 2
nd
Torts Sec. 158: - One is subject to liability for trespass, irrespective of whether he thereby causes harm to any
legally protected interest of the other, if he intentionally and without permission of the lawful possessor either:
1.) Enters the land, 2.) Causes an object or another person to enter land, 3.) Remains on the land, OR 4.) fails to remove from the land a
thing which he is under a duty to remove
o No requirement of damages - Applies even if entrance is only momentary
- Intentional? intentional means that there is a volitional entry of a person or object onto anothers land (mistake is not a defense)
Trespass is committed even if mistakenly believe you have a right to be there
o Rest. Cmmnt (i) - It is enough act is done w/ knowledge it will, to substantial certainty, result in entry of the foreign matter

Reckless or Negligent Trespass: Rest. (2d) Torts, 165: One who recklessly or negligently, or as a result of an abnormally dangerous activity,
- Enters land in the possession of another (or causes a thing or 3rd person to enter) is subject to liability to the possessor
o ONLY IF his presence or the presence of the thing or the third person upon the land causes harm to the land, to the possessor, or to
a thing or a third person in whose security the possessor has a legally protected interest.

Actual Harm in Trespass - Because a legal right is involved, the law recognizes that actual harm occurs in every trespass,
The law infers some damage from every direct entry onto land of another, whether or not compensatory damages are awarded.
Thus, in intentional trespass cases, nominal damages represent recognition that, although immeasurable in $, actual harm has occurred.
Mcwilliams v. Bragg - In establishing punitive damages for trespass, courts recognize that in certain situations, actual harm is not in damage
done to the land (which may be minimal) - BUT actual harm exists in the loss of the right to exclude others from the property.
Court implied that this right may be punished by a large damage award despite the lack of measurable harm.

Privilege as A Defense to Trespass: Non-exclusive list of exceptions to trespass includes
- Consent: If the owner consents to anothers entrance onto his property, there is no trespass.
Consent can be implied or statutes can grant consent (Montana Recreational Use of Streams Acts)
- Emergency/Necessity: Under common law, a person forced to enter anothers property to avoid peril of life or property was not subject to a
claim for trespass - But is responsible for any damage caused, and must remove herself as soon as possible.
- Constitutional limits: an owner of a restaurant open to the public may not exclude a patron based upon race or sex.


Criminal Trespass in Montana: Landowner Must Post Notice - Notice must be placed on a post, structure, or natural object:
- By marking it with written notice or with not less than 50 square inches of fluorescent orange paint
The notice must be placed at each outer gate and normal point of access to the property including both sides of all water bodies
crossing the property, at each point the water body intersects an outer boundary line.
o Does NOT apply to civil trespass; dont need to post notice to bring a civil trespass claim.
Consent in Montana: MCA 45-6-201 - May be revoked any time by personal communication by landowner or other authorized person
- (1) A person enters or remains unlawfully in or upon any vehicle, occupied structure, or premises when not licensed, invited, or privileged
Privilege to enter or remain upon land is extended either by the explicit permission of the landowner or other authorized person or by
the failure of the landowner or other authorized person to post notice denying entry onto private land.

Remedies for Trespass: -Damages: Nominal (if no actual) -Injunctive Relief - Criminal Liability: in most states (must post notice in MT)
- Damages: Common law and standard measure of damages for trespass is the difference in the value of the land before and after the trespass
Restoration Damages: What if the cost of repair (or restoration) exceeds the value of the property?
o In Sunburst School Dist. No. 2. v. Texaco (Mont. 2007) the cost of cleaning up properties damaged by trespassory migration of
benzene ($15,000,000) far exceeded the value of the properties ($2,000,000).
The Montana Supreme Court allowed as damages the cost of restoring the properties (primarily residences), even though such
damages exceeded the value of the properties.
o Only allowable in appropriate cases - Include residential properties (high societal and emotional value)
Loss of Use or Rental Value: Many jurisdictions (including Montana) allow as damages the rental value of the use.
o MCA 27-1-318 - Detriment caused by the wrongful occupation of real property in cases not otherwise provided for in this code is
deemed to be the value of the use of the property for the time of such occupation, not exceeding 5 years next preceding the
commencement of the action or proceeding to enforce the right to damages, and the costs, if any, of recovering the possession.
Measure of damages for value of use in wrongful occupation is defined by value to owner and not wrongdoer
Usually held to be reasonable rental value of premises withheld, but special circumstances may justify other considerations
Punitive Damages: Court may allow punitive damages in appropriate cases, even if property owner suffered no actual damage
o Jacques v. Steenberg Homes - $100,000 in punitive damages awarded where the trespassing company crossed the Jacques land
even though permission was denied and another route was available.
o General Rule: Need to show some deliberate wrong-doing or malice to obtain punitive damages.
- Injunctive Relief: General Rule - Landowner is entitled to injunctive relief requiring removal of an encroachment.
Sought as a remedy when a structure encroaches upon a landowners property - Amcko v. Wellborn (9% mistake in a survey)
o In Amcko, did not require removal of the encroachment - Court allowed plaintiff to elect a remedy from three choices:
(1) an easement (for fair market value) allowing Amcko and successors to use land (would revert to Wellborn if the use were
ever abandoned) - (2) Conveyance of title to the land in question in exchange for its fair market value or
(3) Conveyance of title in return for the replacement plot of land that Amcko owned on the other side of Wellborns lot.
Common law exception: If encroachment is 1.) innocent (not deliberate) and 2.) de minimus Courts may refuse injunction
o Encroachment de minimis Rule - Three Part Test
1.) The trespass must have been innocent Size of encroachment is a factor, but not conclusive
2.) Party seeking removal of an encroachment must have suffered irreparable injury
3.) If 1 and 2 are satisfied The court must balance the hardships of both parties
Court looked at hardship to Amcko (cost of removal, lost revenue, would render the gas station economically unviable)
The Right to Use: Important stick in the bundle of property rights is the right to use your property as you see fit. Is this an absolute right?
All property is acquired and held under the tacit condition that it shall not be used as to injure the equal rights of others, or to destroy or
greatly impair the public rights and interests of the community.
Relativity of Usury Rights: Traditionally, landowners had absolute right to use property any way he wished, if use did not harm others rights
o In practice, the principle limitation on this right was the common law doctrine of nuisance.
As a general matter it makes sense to recognize the owners relatively free right to use their land as she wishes.
o From a utilitarian perspective, it is fair to assume that the owner of land in an agricultural society knows best how to use it
productively for the benefit of all, without any need for government interference.
State v. Shack - A mans right in his real property of course is not absolute.
o It was a maxim of the common law that one should so use his property as to not injure the rights of another.
Rights are relative and there must be an accommodation when they meet. Thus, necessity, private or public, may justify trespass
Some human rights are too fundamental to be denied on the basis of an interest in real property and too fragile to be left to the unequal
bargaining strength of the parties. - Property rights serve human values. They are recognized to that end and are limited by it.

Nuissance: Protect a party's right to free use and enjoyment of his property - Broken in to Two Main Categories: Private and Public
Must show substantial harm - Balancing test between utility of use and gravity of harm. (Rest.)

Private Nuisance - An unreasonable and substantial interference with the use and enjoyment of land/real property.
You have to prove causation and intention from the defendant.

Non-Tresspassory Invasion: The phrase interest in the use and enjoyment of land comprehends not only the interests that a person may
have in the actual present use of land for residential, agricultural, commercial, industrial and other purposes, but also his interests in having the
present use value of the land unimpaired by changes in its physical condition.
Historically, noise, vibration, light, shadows, and odors as well as fine particulates (dust, ash or chemical residues) were generally
viewed as nontrespassory (subject to nuisance not trespass)
o More recently, courts have allowed plaintiffs in such cases to characterize as either a trespass or nuisance (or both).

Rest. 2d Approach: 3-step analysis
- Step 1: A plaintiff must prove significant harm under 821F defining Significant Harm.
There is liability for a nuisance only to those to whom it causes significant harm The kind that would be suffered by a normal person
in the community or by property in normal condition and used for a normal purpose.
Significant harm is a harm of importance, involving more than slight inconvenience or petty annoyance.
o Must be real and appreciable invasion of plaintiff's interests before he can have an action for either a public or a private nuisance.
- Step 2: Categorize the type of invasion as intentional or unintentional under 822 (a) or (b)
(a) If intentional, plaintiff must show that the invasion is unreasonable,
o Intention is established if an invasion continues after the defendant has been made aware of the harm.
(b) If unintentional, plaintiff must show Negligence, reckless conduct, or abnormally dangerous conditions or activities.
- Step 3: If intentional, determine if unreasonable through use of the Balancing Test
826: An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if
o Based on the factors, the gravity of the harm outweighs the utility of the actor's conduct
Factors Determining Gravity of Harm include (a) the extent of the harm involved - (b) the character of the harm involved - (c) the
social value that the law attaches to the type of use or enjoyment - (d) the suitability of the particular use or enjoyment invaded to the
character of the locality - (e) the burden on the person harmed of avoiding the harm
Factors Determining Utility of Conduct include (a) the social value that the law attaches to the primary purpose of the conduct -
(b) the suitability of the conduct to the character of the locality and (c) the impracticability of preventing or avoiding the invasion
- To receive injunctive relief, the social harm must be greater than the social utility - If the benefit is higher No injunctive relief.

Malicious or Indecent Conduct: 829 Gravity Vs. Utility - An intentional invasion of another's interest in the use and enjoyment of land is
unreasonable if the harm is significant and the actor's conduct is either
(a) For the sole purpose of causing harm to the other; or (b) Contrary to common standards of decency.

Aesthetics: Vast majority of jurisdictions do not allow a nuisance claim based on aesthetics alone b/c aesthetic considerations are subjective
Zoning and consensual agreements (such as covenants) are better methods to control the aesthetics of a neighborhood.
Tarlton v. Kaufman - District Court erred by instructing the jury that "[g]enerally, a structure or condition cannot constitute a nuisance merely
because it is considered unsightly or because it obstructs a party's view." - This instruction improperly limited the definition of nuisance set
forth in 27-30-101(1), MCA, and, when viewed in its entirety, was misleading and confusing to the jury.

Liability exists only to those who have property rights and privileges in respect to the use and enjoyment of the land affected, including
(a) possessors of the land, (b) owners of easements and profits in the land, and (c) owners of nonpossessory estates in the land that are
detrimentally affected by interferences with its use and enjoyment.

Coming to the Nuisance: Rst. 2d 840D - Fact that plaintiff has acquired or improved his land after a nuisance interfering with it has come
into existence is not in itself sufficient to bar his action, but it is a factor to be considered in determining whether the nuisance is actionable.
Not an absolute defense In the feedlot case the feedlot was enjoined as a nuisance, even though it was there first
o BUT the court required Webb, the developer of Sun City, to pay the costs of removal.
Spur Industries v. Del E. Web Development
There was no indication in the instant case at the time Spur and its predecessors located in western Maricopa County that a new city
would spring up, full-blown, alongside the feeding operation and that the developer of that city would ask the court to order Spur to
move because of the new city.
o Spur is required to move not because of any wrongdoing on the part of Spur, but because of a proper and legitimate regard of the
courts for the rights and interests of the public.

Statutorily Authorized Activities: MCA 27-30-101(2) nothing done or maintained under express statutory authority can be a nuisance
For example, if a county is specifically authorized by statute to construct a prison or a city is specifically authorized by statute to build
a waste-water treatment plant, neither of these activities may be enjoined as a nuisance.
Right to Farm Statutes: MCA 27-30-101(3) - No agricultural or farming operation, place, establishment, or facility or any of its
appurtenances or the operation thereof is or becomes a public or private nuisance because of the normal operation thereof as a result of
changed residential or commercial conditions in or around its locality IF The agricultural or farming operation, place, establishment,
or facility has been in operation longer than the complaining resident has been in possession or establishment has been in operation.

Nuisance per se: Inherently injurious act, occupation, or structure that is a nuisance at all times and under any circumstances
Regardless of location or surroundings - In contrast, ordinary nuisance requires an examination of circumstances and surroundings.
Barnes v. City of Thompson Falls, 294 Mont. 76 (1999)

Private Nuisance in Montana: MCA 27-30-101 provides a broad statutory definition of nuisance: anything which is injurious to health,
indecent or offensive to the senses, or an obstruction to free use of property, so as to interfere w/ comfortable enjoyment of life or property
Based on this statute, the Montana Supreme Court ruled that a nuisance action may lie based on aesthetics alone. (Tarlton)
o Once you get in the courtroom door, youll still have to prove an unreasonable interference and significant harm (balancing test)

Exceptions to the General Rule
The Spite Fence Doctrine: Landowner cannot erect an unusually high fence along his property line for sole purpose of annoying his neighbor.
Oliver Wendell Holmes Jr. upheld constitutionality of a Spite Fence Statute in Knox, The right to use ones property for sole purpose
of injuring others is not one of the immediate rights of ownership. It is not a right for the sake of which property is recognized by law.

Obstruction of light as a nuisance: At common law, a neighbor who blocks your view, light, or air is not liable for nuisance, because as a
property owner you are not entitled to a view, light or air. Fontainebleau Hotel Corp. v. Forty-five Twenty-Five
Policy: Allowing a nuisance claim for obstruction of light, view or air would hinder development.

Prah v. Maretti (minority view) - Not a per se nuisance - Remanded for balancing test
- The court relies on the Restatement of Torts to provide a balancing test for the evaluation of conflicting interests.
Private nuisance law is better suited to regulate access to sunlight in modern society and is more in harmony with legislative policy
and prior decisions of this court than inflexible doctrine of non-recognition of any interest in access to sunlight across adjoining land.
The court relies on the reasonable use doctrine in order to balance competing interest.
o Use and production of solar energy in modern society holds an elevated and superior position against competing property interests.
The court says, access to sunlight has taken on a new significance in recent years. In this case the plaintiff seeks to protect access to
sunlight, not for aesthetic reasons or as a source of illumination but as a source of energy.
o Access to sunlight as an energy source is of significance both to the landowner who invests in solar collectors and to a society
which has an interest in developing alternative sources of energy

Montana Law on Solar Easements: MCA 70-17-301 - Easements can only be created in writing, through negotiation between neighbors
Courts can not create them through Nuisance Law

Private vs. Public Nuisance - The difference between a private nuisance and a public nuisance is generally one of degree. A private nuisance
is one affecting a single individual or a definite small number of persons in the enjoyment of private rights not common to the public, while a
public nuisance is one affecting the rights enjoyed by citizens as a part of the public.
To constitute a public nuisance, the nuisance must affect a considerable number of people or an entire community or neighborhood.




Public Nuisance - Restatement 821B(1): An unreasonable interference with a right common to the general public.
Does not require interference with use or enjoyment of property.
- Used to protect public health, safety, convenience, as well as morals (prostitution, drug use, and gambling).
Recent subjects of public nuisance claims: Coal generated energy plants for causing global warming - Production of guns by gun
manufacturers - Nude beaches
Who Can Recover for Public Nuisance? 821C (1) To recover damages in individual action for public nuisance, one must have suffered
different kind of harm than suffered by other members of the public exercising right common to general public that is subject of interference.
- 821C (2) In order to maintain a proceeding to enjoin to abate a public nuisance, one must
(a) have the right to recover damages, under (1), or (b) have authority as a public official or public agency to represent the state or a
political subdivision in the matter, or (c) have standing to sue as a representative of the general public, as a citizen in a citizen's action
or as a member of a class in a class action.
Special injury: Private citizens can only bring a public nuisance claim if they have proved private nuisance and that the public is affected
Traditionally actions only brought by public authorities/official, or by a private citizen who had suffered injury different in kind from
that suffered by general public - A more severe injury is not a special injury,
Standing: At common law, the state enforced public nuisance actions - Today, a private citizen can bring a public nuisance action IF
The plaintiff establishes that she has suffered an injury distinct from the injury that the public as a whole suffered.
o Most often, includes landowners near public nuisance, whose right to use or enjoy their land is interfered with by public nuisance.

Factors for Public Nuisance: Rst. 821(b)(2) - Circumstances where an interference with a public right is unreasonable include
(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public
comfort or the public convenience, or
(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has
reason to know, has a significant effect upon the public right.
- Liability for nuisance may be imposed on those who set the injurious course of conduct in motion

Remedies: Plaintiffs in a nuisance action may seek both injunctive relief and damages.
When nuisance results in injury to land, standard measure of damages is difference between value of land before nuisance and after
Courts may allow other measures of damages, including costs of repair or restoration; apply same rules as for trespass damages.

Injunctive Relief: For ongoing nuisances, plaintiffs can also seek an injunction to stop the nuisance. - Court may abate the nuisance entirely.
In some circumstances, the court does not entirely abate the nuisance, but puts limits on the activities to reduce the harm.
o For example, in a case brought by neighbors to abate the use of bright lights by a nearby business, a court may limit the number of
hours that the lights may be used, or reduce the wattage of lights used.
Boomer v. Atlantic Cement - Appellate court remanded - Trial court MUST grant injunctive relief, unless the cement company paid
permanent damages. - Otherwise plaintiffs would have to keep coming back again and again for on-going damages.
Courts are more likely to extend injunctive relief on public nuisance b/c dont need to prove substantiality like in private nuisance.

Rhode Island lead paint case - Limited "public right to an indivisible resource such as air, land, water, public rights of way - To prove
liability for public nuisance defendant must have control over the instrumentality causing the alleged nuisance at the time the damage occurs.
Adverse Possession at Common Law
1.) Actual Possession: Claimant must physically use land in same manner reasonable owner would, given character, location and nature
The character of the property determines the type of use and possession necessary to establish a claim of adverse possession.
The use must be of a possessory type, inconsistent with the legal owners interest.
2.) Exclusive Possession: The claimants possession cannot be shared with the owner or with the public in general
3.) Open and Notorious Possession: Purpose is to give landowner notice so that the landowner can assert her claims against the possessor
Claimants possession must be visible and obvious so if owner made a reasonable inspection, he would become aware of adverse claim.
Can be established by showing condition of use was so obvious that if owner had inspected she would have known of the claimants use
o Places the burden on the landowner to inspect her properties
4.) Adverse/ Hostile Possession (some states also require claim of right)
Element is complex, but all states agree possession authorized by owner does NOT meet this requirement. Beyond this, states differ.
o In most states, claimants state of mind is irrelevant, but some find element met only if claimant believes in good faith he owns it
o A third, rare view, requires bath faith, that is that the claimant must intend to take title from the owner.
Most courts apply an objective, rather than a subjective, test.
o The objective test simply asks whether the possessor acted toward the land as if he owned it, without the permission of one with
legal authority to give possession.
Presumptions for Hostility: Many jurisdictions, including MT, apply a rebuttable presumption giving rise to adverse or hostile intent.
o Once claimant establishes open, actual, exclusive and continuous possession over statutory period, claimed use is presumed adverse
o Burden then shifts to rightful owner to overcome presumption, for example, by establishing that use was permissive and not hostile.
5.) Continuous Possession: Claimed possession must be as continuous as reasonable owners would given character, location, and nature
To be continuous and uninterrupted, the use must not be abandoned by the user or interrupted by an act of the landowner.
6.) For the Statutory Period: (5 years in Montana) - States statutory periods range from 5 to 40 years

Jurisdictional Differences: may be other statutory requirements (Payment of taxes in MT) good faith in several jurisdictions
Gurwit v. Kannatzer - The Gurwits possessed and exercised dominion over the property as much as the character of the property admitted.
Posting no trespass and no hunting signs indicates hostility
o Intent to possess, occupy, control, use and exercise dominion over the property, satisfies the requirement
The Gurwitzs possession was actual - Possession depends upon the nature and location of the property
o The land was unimproved and uncultivated. It had no buildings, no cross fences and no perimeter fences.
o Because they lived some distance from the land, it was not necessary that they occupy or use every foot of the land at every minute.
Their acts of dominion over the property were sufficient to establish the required possession.
Their possession was as continuous as the nature of the property would admit.
o Continuous possession clearly does not require continuous occupation and use.
Exclusive Possession means that the claimant must hold the possession of the land for himself, as his own, and not for another.

Van Valkenburgh v. Lutz (NY Court of Appeals) - In NY there is an additional element that the adverse possessor must improve the land the
claim title to by showing that the protected it by a substantial enclosure and/or was cultivated or improved.
NY Statute requires more activity for claims not founded upon a written instrument (color of title),
o To satisfy possession, claimant must prove: Premises are protected by a substantial enclosure) OR are cultivated or improved
Court construed this to mean cultivation or improvement of the entire premises claimed
Rules of possession may vary Under Claim of Title vs. Color of Title
- Claims based on the Color of Title: Color of Title refers to a deed, a judgment, or another written document that is invalid for some reason.
Receive enhanced protection for the adverse possessor in most states.
For claims based on color of title, most states apply the following rule:
o If you establish occupation or possession of a portion of the property described in the instrument
o You are entitled to possession of the whole - Commonly referred to as constructive possession
- No Color of Title/Claim of Right: Claims not based on a written instrument
Claimant is limited to assert a claim to the area that is actually possessed
Many states further limit such a claim to those areas that are enclosed, cultivated, or improved, and no others
Common Law vs. Statutory Modifications:
- Montana Statutory Rules: 70-19-410 Claim of Title not founded on instrument or judgment
What is considered occupation? Land is deemed possessed and occupied in the following cases only
(1) where it has been protected by a substantial enclosure;
(2) where it has been usually cultivated or improved.
- Common Law - You are only entitled to that portion of the property that is actually possessed
- Statutory Modifications: If possession of portion of property described in the instrument is established entitled to possession of whole
Commonly referred to as constructive possession - See MCA 70-19-408(2)

Tacking: The doctrine of tacking allows the adverse possession periods of two or more successive occupants to be added together to meet the
statutory period, as long as there is privity between them.
For example, in Howard v. Kunto, the Kuntos had only owned the property for 1 year at the time of the action, but they were able to
tack onto their possession the period of occupancy of their predecessors, from whom they purchased the land.
Privity for Tacking: Example where privity exists - Susan begins occupying Os land in 2000. Susan dies in 2003, leaving all of her
right, title and interest to her entire estate to her daughter. Her daughter moves onto the property.

Sovereign Immunity: In the vast majority of jurisdictions (including MT), a party cannot obtain title to government property through adverse
possession or use - Cant squat on a parcel of U.S. Forest Service land and then assert an adverse possession claim against the government.

Breaking a Tie: If evidence in a case is equally balanced on a particular point, a presumption can serve as a tie breaker
MCA 70-19-404 provides a presumption of possession stating,
o In every action for the recovery of real property or the possession thereof, the person establishing a legal title to the property is
presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is
deemed to have been under and in subordination to the legal title.
Tioga Coal v. Supermarkets General - If an adverse possessor actually takes possession of land in a manner that is open, notorious, exclusive,
and continuous, his actions will not be hostile to the true owner of the land as well as to the world at large, regardless of state of mind.
If true owner has not ejected the interloper within the time allotted for an action in ejectment and all other elements of adverse
possession have been established, hostility will be implied, regardless of subjective state of mind of the trespasser.
The Bad Faith Approach: Some states and scholars hold/argue that bad faith is/should be required for proving adverse possession.
Suggests ultimate purpose of adverse possession is to maximize economic efficiency by shifting title from current owner (who places a
low value on the land as evidenced by his lack of use) to an adverse possessor (who places a higher value on the land, shown by use)
The Vertical Dimension of Property Ownership: Rights in airspace and subsurface resources
Ad Coelum (Heaven to Hell) Doctrine: to whomsoever the soil belongs, he owns also to the sky and to the depths
MCA 70-16-101 - The owner of land in fee has the right to the surface and to everything permanently situated beneath or above it.
US v. Causby (WWII Airplane Case) Plaintiffs claim the government took an easement for airplane transit through their airspace w/o consent.
Is there a cognizable property interest in the air space above their house?
o In order to bring a taking claim, you must first show that you have a property interest in the property in question.
Court says the air is a public highway - Recognition of private ownership of airspace, would clog highways, seriously interfering
with their control and development in public interest, and transfer into private ownership that to which only the public has a just claim.
But Causbys still prevail because government use of airspace over their land rendered it uninhabitable, but the loss was not complete.
o If some of the land could still be used, then some value remained.
Trespass lies in airspace actually occupied, plus a buffer zone
o Prohibits intrusion so immediate and direct as to subtract from owners full enjoyment of property and to limit exploitation of it.
Established Three Zones: (1) Immediate reaches: Landowner must have exclusive control of immediate reaches of enveloping atmosphere.
Includes space actually occupied or capable of being occupied in connection with the use of the land, such as buildings, trees, fences.
- (2) Plus zone: prohibits an intrusion so immediate and direct as to subtract from the owners full enjoyment of the property and to limit
his exploitation of it. - the super-adjacent airspace at this low altitude is so close that continuous invasions of it affect use of the land surface
- (3) Public domain: the air is a public highway.

Subsurface Rights
Chance v. BP Chemicals - subsurface ownership rights are limited - Ad Coelum Doctrine in subsurface rights has no place in modern world
To prevail, plaintiffs must prove: some type of physical damages OR actual interference w/ reasonable and foreseeable property use
Subsidence: A subsidence is any movement of the soil from its natural position. Rest. (2d) Torts Sec. 817, Comment h.
Even if a subsurface use is not a trespass or nuisance, if it causes a subsidence of the soil, the person causing the subsidence is liable.
o For example, removing coal from below the surface is not a trespass if the person removing the coal owns the right to mine the coal.
Rst. (2d) of Torts: Under 818, one who has the right to withdraw subterranean water, oil, minerals or other substances from the land
of another is not privileged to cause a subsidence.
o 820 imposes strict liability for subsidence of land in its natural state that results from withdrawal of subjacent support.
In other words, even if the person causing the subsidence was not acting negligently, liability arises.
Lateral Support: Every owner of land has a natural right to lateral support for his land from that adjoining it.
- An adjoining owner cannot excavate her land in such manner as to remove that support to the damage of her neighbor.
Rest. (2d) Torts 817: One who withdraws the naturally necessary lateral support of land in anothers possessionis subject to
liability for a subsidence of the land of the other that was naturally dependent upon the support withdrawn.
o Person liable is the actor who withdraws the necessary support - Transfer of the land doesnt relieve her from liability (comment j)
Liability accrues at the time of subsidence. - Liability even if the person removing support was not acting negligently.
Lateral Support of Buildings: Neyman v. Pincus, 82 Mont. 467 (1928) - This right of lateral support does not extend to the support of any
additional weight or structure which the owner of the land may place or erect thereon.
In other words, it is not the duty of the person removing lateral support or making an excavation to support the buildings of adjoining
owners; that duty rests upon such owners - However, action may lie for injury to a building if excavation was done in negligent manner.
o Substituted Support: Landowners may avoid liability for removal of lateral support by furnishing artificial support (retaining
wall) sufficient to replace natural support withdrawn
Owning Personal Property: Tangible properties or Chattels.
- Four ways to acquire rights in chattels: a.) Capture, b.) Find, c.) Adverse Possession, and d.) Gift

a.) The Rule of Capture - The general rule is that the first person to "capture" such a resource owns that resource.
For example, a landowner who extracts or captures groundwater, oil, or gas from a well that bottoms within the subsurface of his
land acquires absolute ownership of the substance, even if it is drained from the subsurface of anothers land.
- To gain ownership of a wild animal, pursuer must have deprived animal of his natural liberty, and brought him w/in his certain control

Popov v. Hayashi - Some cases recognize possession even before absolute dominion and control is achieved.
Those require actor to be actively and ably engaged in efforts to establish complete control and dominion. Moreover, such efforts must
be significant and they must be reasonably calculated to result in unequivocal dominion and control at some point in the near future.
o The hunter acquires possession upon the act of wounding the animal not the eventual capture.
- Custom and practice of the stands creates reasonable expectation that a person will achieve full control of a ball before claiming possession.
But where an actor takes significant, although incomplete, steps to achieve possession of a piece of abandoned personal property and
the effort is interrupted by unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property.

b.) Finders: Four Categories of Found Chattels
Lost Property: Property is lost when the owner unintentionally and involuntarily parts with it
Mislaid Property: Property is mislaid when owner voluntarily and knowingly places it somewhere, but then unintentionally forgets it.
Abandoned Property: Property is abandoned when the owner knowingly relinquishes all right, title and interest to it.
Treasure Trove: Property is treasure if owner concealed it in hidden location long ago (usually limited to gold, silver, coins, or $)

Armory v. Delamirie - One of the first cases that established possession as a valuable property right and as evidence of ownership.
- Court held that both Armory and Delamirie had property rights in the jewel, even though neither was the true owner.
Held they each have a right to possession that is enforceable against everyone except those with a greater right to the possession.
The true owner of the jewel was not relevant, the Court was only concerned with who had a better right to possession.
o The priority of rights to possession say that a finder has better title to property that he or she finds over everyone except the true
owner, thus Armory had full title to the jewel.
Since the jewel was not produced at the trial, Armory was awarded the maximum value that a jewel of that form could have (under the
principle that a wrongdoer should not be able to derive gain, i.e. uncertainty of damages, from the effects of his wrongdoing).

Who has the Superior Claim?
Abandoned Property: (1) the first person to find and possess (prior owner has no superior claim)
Lost Property: (1) The rightful owner If unclaimed (2) The first person to find and possess
Mislaid Property: (1) the lawful owner (2) the owner of the premises
Treasure Trove: (1) the lawful owner - Unless abandoned

Agency Law: If someone finds an object during course of his employment, under agency law, the employer, as principal, is entitled to property
Employer may waive its right and statutes may vary the right of an employer to found property.

Gifts: Two primary categories of gifts
- Inter Vivos - Usual type of gift made during the donors lifetime - Three elements
1.) Donative intent - Donor must intend to make immediate transfer of property
2.) Delivery - The property must be delivered to the done, so that the donor parts with dominion and control.
3.) Acceptance - The done must accept the property, although acceptance of a valuable item is usually presumed.
- Testamentary Transfer is effective upon the death of the donor. Usually made through a will.

Types of Delivery
- Manual Delivery: Occurs when the donor physically transfers possession of the item to the donee.
At common law, manual delivery was required if practical.
If manual delivery is not practicable, the donor may constructively or symbolically deliver the gift as appropriate.
- Constructive Delivery: Requires that the donor physically transfer to the done an object that provides access to the gifted item.
i.e. keys to a safety deposit box - Allowed if manual delivery is impracticable or impossible.
- Symbolic Delivery: Here, the donor physically transfers to the donee an object that represents or symbolizes the gifted item.
i.e. A document of conveyance, such as a deed to the cabin on the lake - Allowed if manual delivery is impracticable or impossible.

Why Require Delivery? Restatement 3
rd
of Property comment yy
Adopts position that a gift of personal property is valid w/o delivery if donors intent to make a gift is established by clear and
convincing evidence - However, as a general matter, courts still insist that a fist must be delivered.

Acceptance: Courts usually presumed that a valuable gift has been accepted.

Irrevocable Nature of Gifts: As a general rule, once made, gifts are irrevocable.
In a majority of jurisdictions, you may impose an express condition upon a gift, so if condition fails, donor may seek a return of the gift.
In a majority of jurisdictions, courts IMPLY a condition upon the gift of an engagement ring
o The condition is that the gift may be revoked if the marriage does not occur.

Montana Rule on Conditional Gifts: Montana follows the general rule that gifts are irrevocable, BUT
MCA 70-3-103 Allows a gift in view of death to be revoked by the giver.
In Albinger case MT Supreme Court held only revocable gift recognized by Montana law is a gift in view of death [gift causa mortis].

Gift Causa Mortis - A gift of personal property made by a living person in anticipation of death.
- Four Elements: The elements of a gift must otherwise be met, including delivery to the donee or an agent of the donee.
4
th
Element is different - Donors anticipation of imminent death
o A valid causa mortis gift is effective immediately - However, unlike an inter vivos gift, it is revocable.
If the donor does not die from the contemplated illness or peril, the gift causa mortis is revoked.
o In the Brind case, Mrs. Brind make a gift of jewelry in the event she died from surgery to remove a tumor. She didnt die from the
surgery, but from the tumor itself - Court held gift was revoked b/c she did not die from stated peril (the surgery itself)


Introduction to Intellectual Property: Copyrights, Patents, and Trademarks
- Key characteristic of intellectual property is that many people can use it at the same time without it interfering with each others use.
Copyrights: Protects original works of authorship, such as books, computer programs, plays, sculptures and songs 17 USC 102(a)
In no case does copyright protection extend to any idea, procedure, process, system, method of operation, concept, principle, or
discovery explained, illustrated, or embodied in such work. 17 USC 102(b)
As a general rule, any work published in the US before 1923 is now in the public domain.

Three Requirements for a valid Copyright under Copyright Act of 1976
1.) Originality - Work must be created independently (not copied from another source)
It must also contain a minimal amount of creativity
2.) Work of Authorship - Eight categories of works of authorship are recognized by statute
- Literary works (including computer programs) - Musical works - Dramatic works - Pantomimes and choreographic works - Pictoral,
graphic, and sculptural works - Motion puictures and audiovisual works - Sound recordings - Architectural works
3.) Fixation: The work must be written, recorded, or otherwise, embodied in some physical form.
Thus it must be sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of
more than transitory duration.
How do you secure a copyright? - Copyright is secured automatically upon creation of the work.
No publication of the work or registration is required, BUT there are advantages to registration with the U.S. Copyright Office.
For works published on or after March 1, 1989, use of the copyright notice is optional, but highly recommended.
o Use of a copyright notice was required for works published prior to March 1, 1989.
Rights of Copyright holder: Owner of a copyright holds a right to exclude.
She may prevent any other person from reproducing the work, creating derivative works, distributing copies of the work to the public,
publicly performing the work, or publicly displaying the work during the term
In addition, the owner may transfer her copyright to others, or destroy it by abandoning it.
Facts vs. Compilation of Facts: No one may claim originality as to facts. - Facts do not owe their origin to an act of authorship.
The distinction is one between creation and discovery: The first person to find and report a particular fact has not created the fact.

Different levels of protection: Thin Protection = only protects against an actual or literal duplication of the material
A subsequent compiler remains free to use the facts contained in anothers publication so long as the competing work does not
feature the same selection and arrangement.
- Hierarchy of protection: Thick to thin
Creative works - Most highly protected
Derivititve works: A work based upon one or more preexisting works
Government Documents - The intent of the section is to place in the public domain all work of the United States Government,
which is defined in 17 U.S.C. 101 as work prepared by an officer or employee of the United States Government as part of that
person's official duties. In most cases, contractors are not employees.
West Reporters
What constitutes an Infringement: Not all copying is copyright infringement.
The mere fact that a work is copyrighted does not mean that every element of the work may be protected.
o To establish infringement, the plaintiff must establish copying of constituent elements of the work that are original.
How do you prove copying? Proof of copying is crucial to any claim of copyright infringement because no matter how similar the two works
may be (even to the point of identity), if the defendant did not copy the accused work, there is no infringement.
Methods of Proof:
o Direct evidence of copying - such as the admission of a defendant that she copied the plaintiffs work
o Direct evidence of access - Plaintiff sent a copy of his song to defendant or an associate of defendant
o Establish a reasonable possibility of access - The complaining work has been widely disseminated to the public
The BeeGees Case - If plaintiff cannot establish access by any of the above methods, an inference of access may still be established
That inference can be established circumstantially by proof of similarity which is so striking that the possibilities of independent
creation, coincidence and prior common source are, as a practical matter, precluded.
Overlaps w/ requirement that plaintiff prove a substantial degree of similarity between the two works -
o But strikingly similar alone not sufficient to establish access.

The Fair Use Defense: The most important defense in copyright law is fair use
Fair use doctrine allows minor use of a copyrighted work where the use does not materially affect the rights of the copyright owner.
o Doctrine avoids rigid application of copyright law, when on occasion, it would stifle the very creativity the law is designed to foster
The fair use defense was a judge-made doctrine codified with the passage of the 1976 Copyright Act.
o Set out in 17 USC 107 - The fair use of a copyrighted work, including such use by reproduction in copies or phono records or by
any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research, is not an infringement of copyright.
Stewart v. Abend 495 U.S. 207 (1990) - The fair use doctrine "permits [and requires] courts to avoid rigid application of the copyright
statute when, on occasion, it would stifle the very creativity which that law is designed to foster."
- General Categories of Fair Use
The fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies
for classroom use), scholarship, or research, is not an infringement of copyright.
Fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all above factors
- Factors for determining whether the use made of a work in any particular case is a fair use
(1) The purpose and character of the use, including whether such use is Of a commercial nature - Or is for nonprofit edu. purposes
(2) The nature of the copyrighted work;
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) The effect of use upon the potential market for or value of the copyrighted work. - Harper says t MOST IMPORTANT factor
- Fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of the above factors.

Parodies: Parody requires the use of some elements of a prior author's composition to create a new one that, at least in part, comments on
that author's works. - Falls under first factor: purpose of use - Campbell v. Acuff-Rose
Elsmere Music, Inc. v. National Broadcasting Co. - We have consistently held that a parody entitles its creator under the fair use
doctrine to more extensive use of the copied work than is ordinarily allowed under the substantial similarity test.,
Harper & Row Case - parody may or may not be fair use, and petitioners' suggestion that any parodic use is presumptively fair has no
more justification in law or fact than equally hopeful claim that any use for news reporting should be presumed fair,
o parody, like any other use, has to work its way through relevant factors, and be judged case by case, in light of the goals of cpyrght
Patents: 35 USC 154 - A patent is a property right granted by the Government of the United States of America to an inventor to exclude
others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United
States for a limited time in exchange for public disclosure of the invention when the patent is granted.

POLICY BASICS - Historical purpose forgranting of patents was to encourage public disclosure of new scientific and technical developments
- An inventor earns his right of exclusion by instructing the art how to practice what he seeks to protect.
- A patent is an incentive to disclose - A patent simply cannot reach what it does not teach.
- Reason for a patent system is to encourage innovation and its fruits: new jobs and new industries, new consumer goods and trade benefits.
The ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.
- In sum, the system of patent protection has been said to serve the following objectives:
First, patent law seeks to foster and reward invention; second, it promotes disclosure of inventions to stimulate further innovation and
to permit the public to practice the invention once the patent expires; third, the stringent requirements of patent protection seek to
assure that ideas in the public domain remain there for the free use of the public.

Patenting Procedure: - Patent rights are purely statutory as there is no common law of patents.
After the expiration of a patent, its subject matter passes to the free use of the public, which henceforth has the same right to make and
use such subject matter as if it had never been patented.
- Under the Patent Act of 1952, as under prior patent acts, acquisition of patent rights is not automatic or spontaneous.
Rather formal application for letters patent must first be made in the manner prescribed by the patent act (35 U.S.C.A.) and in
regulations (37 C.F.R.) promulgated pursuant thereto.
- The Patent Act does, however, vest an inventor with an inchoate right to the exclusive use of his invention, but this inchoate right can be
perfected only by proceeding in the manner which the patent law requires.

Rights Conferred Through Patent: - The essential right conferred by letters patent, namely, exclusivity, is embodied in the present Patent Act
and the status of letters patent as personal property is codified in the first paragraph
All other "rights" associated with letters patent flow from the fundamental right of exclusivity in the subject matter of the invention.
"A patent for an invention is as much property as a patent for land. The right rests on the same foundation, and is surrounded and
protected by the same sanctions."

What can be Patented? Patentable subject matter is a kind of subject-matter eligible for patent protection
- Five categories of inventions qualify for a patent: Any1.) Art, 2.) Process, 3.) machine, 4.) manufacture or 5.) composition of matter

1793 Patent Act: Whoever invents or discovers any new and useful art, machine, manufacture, or composition of matter, or any new and
useful improvement thereof, may obtain a patent 52 Amendments added processes to patentable subject matter
Manufacture = production of articles for use from raw or prepared materials
Composition of matter = two or more substances



Patenting Living Matter - 1930 Plant Protection Act: "Any person who has invented or discovered any new and useful art, machine,
manufacture or composition of matter, or any new and useful improvements thereof, or who has invented or discovered and asexually
reproduced any distinct and new variety of plant, other than a tuber-propagated plant, may obtain a patent therefor..."
1970 Plant Variety Protection Act: Expressly allows a patent to issue to the breeder of any sexually reproduced or tuber propagated
plant variety (other than fungi or bacteria) who has so reproduced the variety.
o The PVPAs protection is more limited than under the general patent law. Allows:
Farmers to save and replant patented seeds
Use of patented seeds by others for research.

Diamond v. Chakbrabarty (U.S. 1980) - In this seminal case, the USSC, for 1st time, recognized a living organism as patentable subject matter
Chakrabarty has produced a new bacterium with markedly different characteristics from any found in nature.
o His discovery is not natures handiwork, but his own.

Funk Brothers Seed Co., 333 US 127 (1948) Natural phenomena and the laws of nature are free to all men and reserved exclusively to none
He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes.
o If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.

Patenting Human Genes: The case is currently on appeal before the U.S. Supreme Court.
In 2009, the ACLU and the Public Patent Foundation filed a lawsuit challenging that patents on human genes are "products of nature,"
and therefore can't be patented.
In July 2011, the Court of Appeals for the Federal Circuit ruled that the "distinctive nature" of individual genes "as isolated
compositions of matter" allows for them to be patentable. Ass'n for Molecular Pathology v. United States PTO (653 F.3d 1329)
o The splitting and isolation of a gene in the process used by the patent owner created a distinct chemical entity, which was not
found in nature, and could thus be patented.

Requirements: The patent laws usually require that, for an invention to be patentable, it must be

Novel: Only a new (or novel) invention may be patented (i.e. at least some aspect of it must be new)
- The invention must not have been previouslypatented, described in a publication, publicly known or used by others, or available for sale
Invention is novel unless prior patent, publication, or use concerned subject matter containing each and every element of the
invention. In other words, an invention is novel UNLESS one source of prior art BOTH
o Discloses every element of the invention AND enables a person skilled in the art to make the invention.
Patent Office will examine the prior art, all inventions, patents, publications and the like that predated the invention, to
determine if the invention is novel.






Non-obvious: Usually the most difficult element for an applicant to meet.
Subject matter as a whole may not be obvious at the time the invention was made to a person having ordinary skill in the art to which
said subject matter pertains. 35 USC 103
o This requirement is both the most commonly litigated patent validity issue and is the patent validity requirement most likely to
result in a patent being held invalid
IF the differences between the invention and the prior art at the time of invention would have been obvious to a person having
ordinary skill in the area, the PTO will deny the application.
A combination of familiar elements according to known methods is likely to be obvious when it does no more than yield
predictable results. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007)
In Graham v. John Deer Co the USSC explained four primary factors to be considered:
1. The scope and content of the prior art
2. The differences between the prior art and the claims at issue
3. The level of the ordinary skill in the pertinent art
4. AND the secondary considerations such as commercial success or failure of others.
Utility/Usefulness: A patent may be issued only for a useful invention - That is one that offers actual benefit to humans
Because virtually any invention provides some sort of minimal benefit, this element is rarely at issue.

Enablement: Patent application must describe invention in such detail as to enable any person skilled in the art to make and use the same.

Validity: Just because the Patent Office issues a patent does not necessarily mean that the patent is valid - A patent can be challenged.

Claims and Infringement of Patents:
- The most important part of a patent application contains the claims - Exact content of invention for which patent protection is sought.
Every patent application contains one or more so-called "claims", which provide a definition of what is covered by the patent.
o Typically, each claim has two or more subparts called elements, which once approved by PTO, are then set forth in the patent itself.
To infringe, each and every element of at least one of the patents claims must be present in the infringing product.
o If even a single element of a particular claim is missing, the product does not infringe.

Super Soaker Case: No Literal Infringement
The Patent in question described the protected work as 1. A toy comprising: an elongated housing
o Having a chamber therein for a liquid - a pump including a piston having an exposed rod end extending rearwardly of said toy
facilitating manual operation for building up an appreciable amount of pressure
Court held A patent owners right to exclude others from making the invention is defined and limited by language in patents claims.
o Because the Super Soaker gun did not have an inside chamber, there was no literal infringement.

Doctrine of Equivalents: If patent holder can show infringer is doing something equivalent to patented feature can still prove infringement.




Trademarks: Can be any Word, Name, Symbol, or Device used to identify and distinguish goods sold by one person from those of others.
- Elements of trademark:
First use in trade: In order to acquire a trademark, you must use it.
o Trademark extends to the market in which it is used - Can enlarge over time.
o Trademark extends to the type of good or service produced.
Distinctiveness
Non-functionality - Cannot be vital to the use or purpose of the article

First Use Requirement: Trademark rights arise from the actual use of a trademark in trade or commerce.
Generally, to obtain a trademark, the applicant must have used the trademark commercially prior to the filing of the application.

Hierarchy of distinctiveness
Fanciful Mark: a made-up, imaginary word (Xerox)
Arbitrary: Uses common words in an unusual way (Apple as applied to computers)
Suggestive: calls to mind some aspect of the product (Coppertone)
Descriptive: describes the goods function or characteristics, method of use, ingredients, or geographic origin
o Must acquire secondary meaning!!! - Budget Rental Cars
Generic: Cant be trademarked; ie., no trademark for spoon as applied to spoons.

Abandonment: Trademarks must be used!
An owner can lose a trademark through abandonment - If a trademark is abandoned, another party can adopt the mark.
Non-use for three consecutive years is prima facie evidence of abandonment. 15 U.S.C. 1127.
o Two consecutive years of non-use constitutes prima facie evidence of abandonment in Montana. Mont. Code Ann. 30-13-301.
Failure to object to the unauthorized use of a trademark by others can constitute abandonment.
o You must police the use of your trademarks and object to infringing uses!!

Can a color be trademarked? Qualitex
Color does not immediately suggest the source of a product.
o But over time, customers may come to treat a particular color on a product or its packaging as signifying a brand.
Before a color can be trademarked, it has to acquire a secondary meaning associating that color w/ the source of the goods or service.

Infringement Actions: 15 U.S.C. 1114(1)(a).
The test for trademark infringement is whether the infringing mark is likely to cause confusion, or to cause mistake, or to deceive.
Among the factors courts consider are: The strength of the plaintiffs mark - prior and continuous use of either plaintiff or
defendant, - similarity between marks - the competitive proximity of the products - defendants intent in adopting the mark - the
sophistication of the buyers - Actual confusion.
Dilution: The Federal Trademark Dilution Act (January 16, 1996) amended the Lanham Act to provide owners of famous marks with
injunctive relief against unauthorized use of a mark that dilutes the distinctive quality of the famous mark. 15 U.S.C. 1125(c).
Dilution has been defined as either the blurring of a mark's product identification or the tarnishment of the affirmative associations a
mark has come to convey." Mead Data Central, Inc. v. Toyota Motor Sales, Inc., 875 F.2d 1026, 1031 (2d Cir.1989).