Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA418545
`ESTTA Tracking number:
`07/07/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91197395
`Plaintiff
`TSDC, LLC
`D ARI SHERWIN
`CURATOLO SIDOTI CO LPA
`24500 CENTER RIDGE ROAD, SUITE 280
`CLEVELAND, OH 44145
`UNITED STATES
`docket@patentandtm.com
`Opposition/Response to Motion
`D. Ari Sherwin
`docket@patentandtm.com
`/D. Ari Sherwin/
`07/07/2011
`FLGC2200395.pdf ( 19 pages )(959782 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of Application Serial No. 77/900,545
`
`Filed on December 23, 2009
`
`For the mark FIGHT LIKE A CAROLINA GIRL
`
`Published in the Ofiicial Gazette (Trademarks) on May 18, 2010
`
`Opposition N0.: 91/ 197,395
`
`) ) )
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`
`TSDC, LLC
`
`and
`
`Sandra Ellis
`
`Opposers,
`
`V.
`
`Beyond The Box, Inc.,
`
`Applicant.
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`ATTN: TRADEMARK TRIAL AND APPEAL BOARD
`P.O. BOX 1451
`ALEXANDRIA, VA. 22313-1451
`
`

`
`OPPOSERS’ SUPPLEMENTAL RESPONSE TO
`
`
`APPLICANT’S MOTION FOR JUDGMENT ON THE PLEADINGS
`
`OR IN THE ALTERNATIVE, OPPOSERS’ MOTION FOR
`JUDGMENT ON THE PLEADINGS
`
`TSDC, LLC (hereinafter referred to as "TSDC") and Sandra Ellis (hereinafter
`
`referred to as "ELLIS") (TSDC and ELLIS are hereinafter collectively referred to as
`
`"OPPOSERS"), through their undersigned attorney, hereby submit their Supplemental
`
`Response to Applicant’s Motion for Judgment on the Pleadings.
`
`In the alternative, and pursuant to Rule 12(0) of the Federal Rules of Civil
`
`Procedure and the TTAB Manual of Procedure (TBMP) §504, OPPOSERS hereby move
`
`the Honorable Trademark Trial and Appeal Board (hereinafter referred to as “the
`
`Board") for judgment on the pleadings in Opposition No. 91/197,395 filed on November
`
`15, 2010 (“Opposition”) by OPPOSERS. This motion is supported by the following
`
`Brief. OPPOSERS’ motion is being filed prior to the opening of testimony in this case
`
`and is therefore, timely and not made so as to delay the trial. OPPOSERS note that no
`
`Suspension Notice has been entered in the present proceeding. However, OPPOSERS
`
`are aware that the corresponding opposition proceeding (Opposition No. 91/197,393) has
`
`been suspended pending disposition of Applicant’s Motion for Judgment on the
`
`Pleadings filed on February 15, 2011. OPPOSERS’ motion is relevant to Applicant’s
`
`Motion for Judgment on the Pleadings, as the Board cannot permit a void application to
`
`proceed to allowance. Therefore, the present paper should be given consideration by the
`
`Board.
`
`Applicant’s subject application is void ab initio and cannot be corrected by
`
`amendment. The Applicant was not the owner of the mark when the application was
`
`filed. If the application is void, it should be unnecessary for the parties and the Board to
`
`spend time and resources deciding any other grounds presented in the Notice of
`
`Opposition.
`
`

`
`LEGAL STANDARD FOR MOTION FOR JUDGMENT ON THE PLEADINGS
`
`“A judgment on the pleadings may be granted only where, on the facts as deemed
`
`admitted, there is no genuine issue of material fact to be resolved, and the moving party is
`
`entitled to judgment, on the substantive merits of the controversy, as a matter of law.”
`
`TBMP § 504.02. “For purposes of the motion, all well pleaded factual allegations of the
`
`nonmoving party must be accepted as true, while those allegations of the moving party
`
`which have been denied
`
`are deemed false.” Id. “A judgment on the pleadings may be
`
`granted only where, on the facts as deemed admitted, there is no genuine issue of material
`
`fact to be resolved, and the moving party is entitled to judgment, on the substantive
`
`merits of the controversy, as a matter of law.” Id.
`
`THE PLEADINGS
`
`The Notice of Opposition was filed November 15, 2010, and it was accepted as
`
`the operative pleading by Order dated November 15, 2010.
`
`In the Notice of Opposition,
`
`OPPOSERS asserted that the alleged Applicant filed its mark in the subject application to
`
`register FIGHT LIKE A CAROLINA GIRL on the Principal Register of the United
`
`States Patent and Trademark Office for athletic apparel, namely, shirts, pants, jackets,
`
`hats and caps, athletic uniforms excluding footwear in lntemational Class 025. See
`
`Notice of Opposition at 11 15. OPPOSERS asserted that the alleged Applicant had not
`
`filed an Allegation of Use in the application, and OPPOSERS have not found any
`
`evidence of use of the mark FIGHT LIKE A CAROLINA GIRL by Applicant
`
`in
`
`commerce.
`
`Id. at1[ l8.
`
`

`
`In its Answer, Applicant has admitted — no less than three (3) times — that it was
`
`acting as the agent of END THE FIGHT, INC., a non-profit corporation based in
`
`Charlotte, North Carolina. See Answer at Pg. 2, Pg. 4; 1} 4 in “Counterclaims” section;
`
`and Pg. 5. By its Answer filed on December 27, 2010, the Applicant admits that it is not
`
`the actual owner of the subject mark.
`
`Under the Federal Trademark Act of 1946 (i.e.,
`
`the Lanharn Act),
`
`the terms
`
`"applicant" and "registrant" embrace the legal representatives, predecessors, successors
`
`and assigns of such applicant or registrant. See §45 (15 U.S.C.A. 1127) (emphasis
`
`added). The commonly accepted definition of an “agent” is that of a representative, one
`
`who is authorized to act for or in the place of another, a person who manages business,
`
`financial, contractual matters for another.
`
`See Merriam-Webster Dictionary on—line
`
`definitions, attached hereto as EXHIBIT 1. Black ’s Law Dictionary defines “agent” as a
`
`“person authorized by another (principal) to act for or in place of him; one instructed with
`
`another’s business.
`
`See Black ‘s Law Dictionary, 6th ed., p. 63, attached hereto as
`
`EXHIBIT 2. “Agency” is a consensual relationship created by contract or by law where
`
`one party, the principal, grants authority for another party, the agent, to act on behalf of
`
`and under the control of the principal to deal with a third party. An agent is one
`
`authorized to transact all business of principal, or all of principal’s business of some
`
`particular kind, or all business at some particular place. Farm Bureau Mut. Ins. Co.
`
`12.
`
`Coffee, 136 Ind. App. 12, 186 N.E.2d 180, 182. One of the most important elements of a
`
`principal-agent relationship is the concept of control: the agent agrees to act under the
`
`control or direction of the principal. See Law Dictionary on-line definition, attached
`
`hereto as EXHIBIT 3. Therefore, Applicant, by its own admission, is a representative of
`
`END THE FIGHT, INC., has been authorized to act for or in the place of END THE
`
`FIGHT, INC., and has been instructed with END THE FIGHT, INC.’s business matters.
`
`However, an agent or a representative cannot be named in a trademark application instead
`
`of the true trademark owner, or the entity that has the bona fide intent—to-use the mark.
`
`For these reasons, Applicant is incorrectly and unlawfully listed as the owner of the
`
`subject trademark application. Accordingly, the mark should be denied registration.
`
`

`
`BACKGROUND OF OPPOSITION
`
`On December 23, 2009, Beyond The Box, Inc., a North Carolina corporation,
`
`filed an application to register the mark FIGHT LIKE A CAROLINA GIRL for “athletic
`
`apparel, namely, shirts, pants,
`
`jackets, hats and caps, athletic uniforms excluding
`
`footwear.” Mr. Michael Todd Tucker, a US. individual citizen, signed the application as
`
`owner of this trademark. This application is identified by Serial No. 77/900,545 and is
`
`the subject of this opposition proceeding.
`
`On May 18, 2010, the subject application was published in the Official Gazette
`
`with Beyond The Box, Inc. listed as the applicant.
`
`The only issue in this case is whether the party applying to register the mark is in
`
`fact the owner of the mark. If the party applying to register the mark is in fact the owner
`
`of the mark, but there is a mistake in the manner in which the name of the applicant is set
`
`out in the application,
`
`the mistake may be corrected by amendment. U.S. Pioneer
`
`Electronics Corp.
`
`v. Evans Marketing,
`
`lnc.. 183 USPQ 613 (Comm'r Pats. 1974).
`
`However,
`
`the application may not be amended to designate another entity as the
`
`applicant. 37 C.F.R. §2.71(D); TMEP 59803.06. An application filed in the name of the
`
`wrong party is void and cannot be corrected by amendment. In re Tong Yang Cement, 19
`
`USPQ2d 1689 (TTAB 1991).
`
`In an intent to use-based application under Trademark Act Section l(b), only the
`
`owner of the mark may file the application for registration of the mark; if the entity filing
`
`the application is not the owner of the mark, as of the filing date, the application is void
`
`ab initio. See Trademark Act Section 1(2)). 15 US. C. § 1051(a); Trademark Rule 2. 7](a'),
`
`37 CFR 592. 71 (d). This statutory requirement cannot be waived. Huang v. Tzu Wei Chen
`
`Food C0,. Ltd., 849 F.2d 1458, 7 USPQ2d 1335 (Fed. Cir. 1988).
`
`

`
`The undisputed facts in this case clearly establish that the owner of the trademark
`
`was incorrectly identified as Beyond The Box, Inc. when the application was filed.
`
`Applicant admitted in the pleadings that it was the agent for END THE FIGHT, INC.,
`
`which is the true owner of the mark.
`
`There is no question that the subject application is void ab initio and should not
`
`have been approved. This is squarely a non-correctable mistake in naming the wrong
`
`applicant.
`
`CONCLUSION
`
`Applicant has admitted it was merely acting as an agent of END THE FIGHT,
`
`INC. END THE FIGHT, INC., not applicant, is the true ovmer of the subject trademark
`
`used in connection with the goods outlined in the application on December 23, 2009, the
`
`filing date of this application. Because Beyond The Box, Inc. was not the owner of the
`
`mark as of the filing date, the application should be deemed void ab initio.
`
`Accordingly, OPPOSERS respectfully request the Board to sustain the Notice of
`
`Opposition and to refuse registration of the subject trademark application.
`
`Date: July 7, 2011
`
`Respectfully submitted,
`
`/D. Ari Sherwin/
`D. Ari Sherwin, Esq.
`Curatolo Sidoti C0,, LPA
`
`24500 Center Ridge Road, Suite 280
`Cleveland, Ohio 44145
`T: 440.808.0011
`
`F: 440.808.0657
`
`Attorney for Opposers
`
`

`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing OPPOSERS’
`SUPPLEMENTAL RESPONSE TO APPLICANT’S MOTION FOR JUDGMENT ON
`
`THE PLEADINGS, OR IN THE ALTERNATIVE, OPPOSERS’ MOTION FOR
`JUDGMENT ON THE PLEADINGS has been served upon the Applicant on this 7”‘ day
`of July, 2011 by depositing the same in the United States First Class Mail, postage pre-
`paid, in an envelope addressed as follows:
`
`Beyond The Box, Inc.
`c/0 Michael Todd Tucker, Manager of Beyond The Box, Inc.
`116 Lowes Food Drive, #132
`Lewisville, NC 27023
`
`/D. Ari .S'herwin/
`
`D. Ari Sherwin
`
`

`
`EXHIBIT 1
`
`

`
`Agent - Definition and More from the Free Merriam-Webster Dictionary
`
`Page 1 of 2
`
`
`
`m-w.com
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`9!
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`Take Our10-Question Quiz
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`agent
`
`H :x”rz‘<Ii;3 :GJllC agent (noun)
`
`agent
`
`Hz" ‘
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`Words For Lover.-e Ynu Might Not
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`-" Top 10 Particular Kinds of Lovers
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`"flflboob"
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`P"°e"i"
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`agent cipher (noun)
`agent code (noun)
`
`agent '1‘?
`
`noun
`
`\.ai.»nt‘.,
`
`Dc-.finiti’on of AGENT
`
`1
`
`: one that acts or exerts power
`
`2 a : something that produces or is capable of producing an
`effect : an active or efficient cause
`
`b: a chemically, physically, or biologically active principle
`
`3 : a means or instrument by which a guiding intelligence
`achieves a result
`
`4 : one who is authorized to act for or in the place ofanother:
`as
`
`a : a representative, emissary, or official of a government
`<crown agent> <federal agent>
`
`b : one engaged in undercover activities (as espionage) : SPY
`<secret agenl:>
`
`c : a business representative (as of an athlete or entertainer)
`<a theatrical agent>
`
`5 : a computer application designed to automate certain tasks
`(as gathering information online)
`
`See agent defined for English-language learrers x»
`
`See agent defined for kids 2-
`Examples of AGENT
`
`our Free Apps
`
`Memam_we,,s,e,5
`Diaionary
`For IPhone. lPad,
`and ,\.m,.,|d Newl
`
`They worked with a travel agent to plan their vacation.
`
`<the whitening agent in the detergent is chlorine bleach>
`
` Middle English, from Medieval Latin agent-, agens, from
`
`Origin of AGENT
`
`y
`
`Ge, mam “(W
`
`Latin, present participle of agere to drive, lead, act, do; akin
`to Old Norse aka to travel in a vehicle, Greek again to drive.
`lead
`
`First Known Use: 15th century
`
`Related to AGENT
`
`Synonyn1s:agenry, lnzitrumerit‘, lnsl'rii'11erital1ty, maclimeiy,
`.-neans, inedltini, mimstry, OTQEAH, vehicle
`,
`-
`; riiciw
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`Free Apps
`oF:.w: I
`
`
`
`
`
`http://wvwv.merriam-webstencom/dictionary/agent
`
`7/7/20] 1
`
`

`
`Agent - Definition and More from the Free Merriam-Webster Dictionary
`
`Page 2 of 2
`
`Britannica.con1
`
`Learn more about "agerit" and related topics at
`Britannica.com
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`
`Next Word in the Dictionary: agent cipher
`Previous Word in the Dictionary: age norm
`All Words Near: agent
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`Hr(n'.Ԥelh(- Diztionary ABCDEFGHIJKLMNOPQRSTUVWXVZ
`Hrn2.'5rl!ir.:T|teSa.lr1JS.ABCDEFGH|JKLMNOPQRSTUVWXYZ
`BiO‘.v5:‘ ll1e:Fm:unsIi»Englrah :'4C'.lf)flEl'y. A B C D E F G H I J K L M N O P O R S T U V W X Y Z
`:.e.>iin.-lx1;—dn«;aI Dicnonary ABCDEFGHIJKLMNOPDRSTUVWXYZ
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`F1ir‘~'.'E.e-li‘i€.'C()'IL2iSb Esicyaiopeoia ABCDE FG HIJKLM NOPDRSTUVWI YZ
`
`hl1p://www.merriam—webster.com/dictionary/agent
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`7/7/20] 1
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`

`
`Agency — Definition and More from the Free Merriam—Webster Dictionary
`
`Page I of 2
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`Word Games Word of the Day
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`I: [1
`
`agency
`
`agency
`
`E 17 E\'i”< $3 .»'.‘jL,H“:C:
`
`0 LOADING
`
`Pozxclaiity
`,- ‘4~,
`
`1640
`
`Get them now‘
`
`Related to AGENCY
`
`Synonyms: divisiori, arm‘ ‘.‘vl.7ii‘|Cl‘|, laureat.-,4;'epai't:11ent4
`desk, office. sex‘-.»n_e
`lYi'_i'r4
`
`BrItzn1nic.'i.com
`
`»");"l1 liI.l‘i" eviuiiz :{l1]'L*l‘:1,-." and related topics at
`
`http://www.merriam—webs1er.com/dictionary/agency
`
`7/7/201 1
`
`'
`
`I.’ ‘
`?’ "-L
`
`
`
`
`
`Vt,-ur(1,~lrorl.«.u:rs you Might Not
`Know l~1.\'I.s'l
`1 Top 10 Panicular Kinds of Lovers
`
`"Habuob"
`When a massive dust stoma rolled through
`Phoenix more 3
`
`"Palimpscsl"
`In a blog post on some of the wors1 things
`about hockey more .
`
`agency (noun)
`agency shop (noun)
`
`agency tariff (noun)
`Arts by Guagle
`AARP® 50+ Auto Insurance
`Over SI]? You Could Save Avg $364‘ On AARPJV Auto Ins From The Hartiurd
`AARF'.TneHarziard com
`
`1“
`
`V
`
`agency 4 noun
`
`-...4..;.i...i:
`
`~53‘: \
`
`,-ilural agen-cies
`Definition of AGENCY
`
`1
`
`a : me office or function of an agent
`b : the relationship between a principal and that person's
`agent
`
`2 : the capacity, condition, or state of acting or of exerting
`power : OPEi'u1.'llON
`
`3 : a person or thing through which power is exerted or an end
`is achieved :
`lNsa’iiu;t-ai€r~JiAi,: W <communicate:: through the
`agency of the ambassador>
`
`4 : an establishment engaged in doing business for another <an
`advertising agency>
`
`5 : an administrative division (as of a government) <the agency
`_
`for consumer protection>
`
`13’ See agency defined for Eng|ish—|anguage learners u
`See agency defined for kids --
`
`Examples of AGENCY
`_
`_
`.
`the federal agency in charge of printing money
`
`<the federal agency charged with enforcing laws and
`regulations regarding the use of firearms>
`
`First Known Use :5! AGENCY
`
`
`
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`Agency — Definition and More from the Free Merriam-Webster Dictionary
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`7/7/201 1
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`

`
`EXHIBIT 2
`
`

`
`“Agent”
`Black's Law Dictionary, 6th ed., p. 63.
`
`Agent:
`
`A person authorized by another (principal) to act for or in place of him; one instructed
`with another’s business. Humphries v. Going, D.C.N.C., 59 F.R.D. 583, 587. One who
`represents and acts for another under the contract or relation of agency (q.v.). A business
`representative, whose function is to bring about, modify. affect, accept performance of, or
`terminate contractual obligations between principal and third persons. One who undertakes to
`transact some business, or to manage some affair, for another, by the authority and on account of
`the latter, and to render an account of it. One who acts for or in place of another by authority
`from him; a substitute, a deputy, appointed by principal with power to do the things which
`principal may do. One who deals not only with things, as does a servant, but with persons, using
`his own discretion as to means, and frequently establishing contractual relations between his
`principal and third persons.
`
`One authorized to transact all business ofprincipal, or all of principal‘s business of some
`particular kind, or all business at some particular place. Farm Bureau Mm. Ins. Co. v. Coffee,
`136 Ind. App. 12,186N.E.2d 180. 182.
`
`

`
`EXHIBIT 3
`
`

`
`agency legal definition of agency. agency synonyms by the Free Online Law Dictionary.
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`Page 1 of4
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`agency
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`agency
`Also found in: Qi¢ogar‘yflt_e§_a_LLus, Mecligl, Financra_l, Acronyms, Encyclopedia, Wikipedia
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`Agent:/.»M‘nstonhenry.com
`
`A consensual relationship created by contract or by law where one party, the principal, grants authority
`for another party, the agent. to act on behalf of and under the control of the principal to deal with a third
`party. An agency relationship is fiduciary in nature, and the actions and words of an agent exchanged
`with a third party bind the principal.
`
`An agreement creating an agency relationship may be express or implied, and both the agent and
`principal may be either an individual or an entity. such as a corporation or partnership.
`
`Under the law of agency, if a person is injured in a traffic accident with a delivery truck, the truck
`drivers employer may be liable to the injured person even if the employer was not directly responsible
`for the accident. That is because the employer and the driver are in a relationship known as principal-
`agent, in which the driver. as the agent. is authorized to act on behalf of the employer, who is the
`principal.
`
`The law of agency allows one person to employ another to do her or his work, sell her or his goods, and
`acquire property on her or his behalf as if the employer were present and acting in person. The
`principal may authorize the agent to perform a variety of tasks or may restrict the agent to specific
`functions, but regardless of the amount. or scope, of authority given to the agent, the agent represents
`the principal and is subject to the principal's control. More important, the principal is liable for the
`consequences of acts that the agent has been directed to perform.
`
`A voluntary, GOOd«_Eaitl'_l_ relationship of trust. known as a fiduciary relationship. exists between a
`principal and an agent for the benefit of the principal. This relationship requires the agent to exercise a
`duty of loyalty to the principal and to use reasonable care to serve and protect the interests of the
`principal. An agentwho acts in his or her own interest violates the fiduciary duty and will be financially
`liable to the principal for any losses the principal incurs because of that breach of the fiduciary duty, For
`example, an agent who accepts a bribe to purchase only the goods from a particular seller breaches his
`fiduciary duty by taking the money. since it is the agent's duty to work only for the best interests of the
`principal.
`
`An agency relationship is created by the consent of both the agent and the principal; no one can
`unwittingly become an agent for another. Although a principal-agent relationship can be created by a
`contract between the parties. a contract is not necessary if it is clear that the parties intend to act as
`principal and agent. The intent of the parties can be expressed by their words or implied by their
`conduct.
`
`Perhaps the most important element of a principal-agent relationship is the concept of control: the
`agent agrees to act under the control or direction of the principal. The extent of the principal's control
`over the agent distinguishes an agent from an l,n,de_p_en_d_en_tpghtraclor, over whom control and
`supervision by the principal may be relatively remote. An independent contractor is subject to the
`control of an employer only to the extent that she or he must produce the final work product that she or
`he has agreed to provide. independent contractors have the freedom to use whatever means they
`choose to achieve that final product. When the employer provides more specific directions. or exerts
`more control, as to the means and methods of doing thejob—by providing specific instructions as to
`how goods are to be sold or marketed. for example-—then an agency relationship may exist.
`
`The agent's authority may be actual or apparent. if the principal intentionally confers express and
`implied powers to the agent to act for him or her, the agent possesses actual authority. When the agent
`exercises actual authority, it is as if the principal is acting, and the principal is bound by the agent's acts
`and is liable tor them. For example, if an owner of an apartment building names a person as agent to
`lease apartments and collect rents, those functions are express powers. since they are specifically
`stated. To perform these functions. the agent must also be able to issue receipts for rent collected and
`to show apartments to prospective tenants. These powers. since they are a necessary part of the
`express duties of the agent, are implied powers. When the agent performs any or all of these duties.
`whether express or implied, it is as if the owner has done so.
`
`A more complicated situation arises when the agent possesses apparent authority. In this case, the
`principal, either knowingly or even mistakenly. permits the agent or others to assume that the agent
`possesses authority to carry out certain actions when such authority does not. in tact, exist. If other
`persons believe in good faith that such authority exists. the principal remains liable for the agent's
`actions and cannot rely on the defense that no actual authority was granted. For instance, suppose the
`owner of a building offers it for sale and tells prospective buyers to talk to the rental agent. if a buyer
`enters into a purchase agreement with the agent. the owner may be liable for breaching that contract if
`she later agrees to sell the building to someone else. The first purchaser relied on the apparent
`authority of the agent and will not be penalized even it the owner maintains that no authority was ever
`given to the agent to enter into the contract. The owner remains responsible for acts done by an agent
`who was exercising apparent authority.
`
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`htto://legal-dictionary.thefreedictionarv.com/agency
`
`7/7/201 l
`
`

`
`agency legal definition of agency. agency synonyms by the Free Online Law Dictionary.
`The scope ofan agent's authority. whether apparent or actual, is considered in determining an agent's
`liability for her or his actions. An agent is not personally liable to a third party for a contract the agent
`hasventered into as a representative of the principal so long as the agent acted within the scope of her
`or his authority and signed the contract as agent for the principal. If the agent exceeded her or his
`authority by entering into the contract, however, the agent is financially responsible to the principal for
`violating her or his fiduciary duty. In addition, the agent may also be sued by the other party to the
`contract for @151. The principal is generally not bound if the agent was not actually or apparently
`authorized to enter into the contract
`
`Page 2 of 4
`
`Vtmh respect to lia bility in roar (i.e., liability fora civil wrong, such as driving a car in a negligent manner
`and causing an accident), the principal is responsible for an act committed by an agent while acting
`within his or her authority during the course of the agent's employment. This legal rule is based on
`respondeat superior, which is Latin for "let the master answer." The doctrine of Respondeat Superior,
`first developed in England in the late 1500s and adopted in the United States during the 18403, was
`founded on the theory that a master must respond to third persons for losses negligently caused by the
`master's servants. In more modern terms. the employer is said to be vicariously liable for injuries
`caused by the actions of an employee or agent; in other words, liability for an employee's actions is
`imputed to the employer. The agent can also be liable to the injured party. but because the principal
`may be better able financially to pay any judgment rendered against him or her (according to the "deep-
`pocket" theory), the principal is almost always sued in addition to the agent.
`
`A principal may also be liable for an agent's criminal acts if the principal either authorized or consented
`to those acts; if the principal directed the commission of a crime, she or he can be prosecuted as an
`.9tcc_e_ssgi;y to the crime. Some state and federal laws provide that a corporation may be held criminally
`liable for the acts of its agents or officers committed in the transaction of corporate business, since by
`law a corporation can only act through its officers.
`
`An agent's authority can be terminated only in accordance with the agency contract that first created
`the principal-agent relationship. A principal can revoke an agent's authority at any time but may be
`liable for damages if the termination violates the contract. Other events—such as the death, insanity, or
`Barfluptcy of the principal—end the principal-agent relationship by operation of law. (Operation of law
`refers to rights granted or taken away without the party's action or cooperation, but instead by the
`application of law to a specific set of facts.) The rule that death or insanity terminates an agent's
`authority is based on the policy that the principal's estate should be protected from potential fraudulent
`activity on the part of the agent. Some states have modified these common-law rules, allowing some
`acts of the agent to be binding upon other parties who were not aware of the termination.
`
`Further readings
`
`Gregory, William A. 2001. The Law ofAgency and Partnership. 3d ed. St. Paul, Minn.: West Group.
`
`Hynes, J. Dennis. 2001. Agency, Partnership, and the LLC in a Nutshell. 2d ed. St. Paul, Minn.: West
`Group.
`
`C ross-refe ren ces
`
`Contracts; Fi.ctuc.ia.ry.; Qqoiiiailh: lmpiitect: Liability: Master. and Servant; BIL5FEL.deA_LE>_6_fiLJl;
`Vicarious Liability.
`
`West's Encyclopedia of American Law. edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
`
`agency n. the relationship of a person (called the agent) who acts on behalf of another person,
`company, or government, known as the principal. "Agency" may arise when an employer (principal) and
`employee (agent), asks someone to make a delivery or names someone as an agent in a contract. The
`basic rule is that the principal becomes responsible for the acts of the agent, and the agent's acts are
`like those of the principal (Latin: respondeat superior). Factual questions arise such as: was the agent
`in the scope of employment when he/she ran down the little child, got drunk and punched someone, or
`sold impure wheat? There is also the problem ofwhether the principal acted in such a way as to make
`others believe someone was his agent--this is known as "apparent" or "ostensible" authority. Vvhen
`someone who is or is not an employee uses company business cards, finance documents, or a truck
`with the company logo, such use gives apparent authority as an agent. (See: authority. age_r_it_, scotJ_e,__of
`employment, respondeat superior)
`
`Copyright 0 ‘IBB1-2005 by . All Right reserved.
`
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`T.‘§'_\-.'l‘nuM'B‘iii$.Ii£‘J!z.. %F:1fi$3flExIEE.fi !?m¢E鑧$$J£”iQ¥§
`
`agency (Commission). noun at.c.lmi.ri_i§..t_r.a_tio,r..i. a.uthori1y.. bureau. wage. .co_rdmari_d. c9.mmi.ttee. control.
`delegation. d.ei2a.r.tmeri_t. otfice
`Associated concepts: administrativeagency, governmental agency
`.- z. .. .. cn. ~u¢ua~:xa«:.$5Vfii.*rA#u—Jf-fili-3‘—'rw0Jbu:.4z§4a!~«-on.-newv am,..... an
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`agency (Legal relationship), noun ggniim, g_s§ig_