87-301 Terms, defined. - Nebraska Statutes

87-301. Terms, defined.For purposes of the Uniform Deceptive Trade Practices Act,unless the context otherwise requires:(1) Access software providermeans a provider of software, including client or server software, or enablingtools that do any one or more of the following: (a) Filter, screen, allow,or disallow content; (b) pick, choose, analyze, or digest content; or (c)transmit, receive, display, forward, cache, search, subset, organize, reorganize,or translate content;(2) Appropriate inventory repurchase program means a program bywhich a plan or operation repurchases, upon request and upon commerciallyreasonable terms, when the salesperson's business relationship with the companyends, current and marketable inventory in the possession of the salespersonthat was purchased by the salesperson for resale. Any such plan or operationshall clearly describe the program in its recruiting literature, sales manual,or contract with independent salespersons, including the disclosure of anyinventory that is not eligible for repurchase under the program;(3) Article means aproduct as distinguished from its trademark, label, or distinctive dress inpackaging;(4) AttorneyGeneral means the Attorney General of the State of Nebraska or the countyattorney of any county with the consent and advice of the Attorney General;(5) Cable operator meansany person or group of persons (a) who provides cable service over a cablesystem and directly or through one or more affiliates owns a significant interestin such cable system or (b) who otherwise controls or is responsible for,through any arrangement, the management and operation of such a cable system;(6) Certification mark means a mark used in connection with the goodsor services of a person other than the certifier to indicate geographic origin,material, mode of manufacture, quality, accuracy, or other characteristicsof the goods or services or to indicate that the work or labor on the goodsor services was performed by members of a union or other organization;(7) Collective mark means a mark used by members of a cooperative,association, or other collective group or organization to identify goods orservices and distinguish them from those of others, or to indicate membershipin the collective group or organization;(8) Commerciallyreasonable terms means the repurchase of current and marketable inventorywithin twelve months from the date of purchase at not less than ninety percentof the original net cost, less appropriate setoffs and legal claims, if any;(9) Compensationmeans a payment of any money, thing of value, or financial benefit;(10) Considerationmeans anything of value, including the payment of cash or the purchase ofgoods, services, or intangible property. The term does not include the purchaseof goods or services furnished at cost to be used in making sales and notfor resale or time and effort spent in pursuit of sales or recruiting activities;(11) Coveredfile-sharing program means a computer program, application, or software thatenables the computer on which such program, application, or software is installedto designate files as available for searching by and copying to one or moreother computers, to transmit such designated files directly to one or moreother computers, and to request the transmission of such designated filesdirectly from one or more other computers. Covered file-sharing program doesnot mean a program, application, or software designed primarily to operateas a server that is accessible over the Internet using the Internet DomainName System, to transmit or receive email messages, instant messaging, real-timeaudio or video communications, or real-time voice communications, or to providenetwork or computer security, network management, hosting and backup services,maintenance, diagnostics, technical support or repair, or to detect or preventfraudulent activities;(12) Current and marketable has its plain and ordinary meaning butexcludes inventory that is no longer within its commercially reasonable useor shelf-life period, was clearly described to salespersons prior to purchaseas seasonal, discontinued, or special promotion products not subject to theplan or operation's inventory repurchase program, or has been used or opened;(13) Information contentprovider means any person or entity that is responsible, in whole or in part,for the creation or development of information provided through the Internetor any other interactive computer service;(14) Interactive computer service means any informationservice, system, or access software provider that provides or enables computeraccess by multiple users to a computer server, including specifically a serviceor system that provides access to the Internet and such systems operated orservices offered by libraries or educational institutions;(15) Inventoryincludes both goods and services, including company-produced promotional materials,sales aids, and sales kits that the plan or operation requires independentsalespersons to purchase;(16) Inventory loading means that the plan or operation requiresor encourages its independent salespersons to purchase inventory in an amountwhich exceeds that which the salesperson can expect to resell for ultimateconsumption or to a consumer in a reasonable time period, or both;(17) Investmentmeans any acquisition, for a consideration other than personal services, ofpersonal property, tangible or intangible, for profit or business purposes,and includes, without limitation, franchises, business opportunities, andservices. It does not include real estate, securities registered under theSecurities Act of Nebraska, or sales demonstration equipment and materialsfurnished at cost for use in making sales and not for resale;(18) Mark means aword, name, symbol, device, or any combination of aword, name, symbol, or device in any form or arrangement;(19) Person means a natural person, a corporation, a government, or a governmental subdivisionor agency, a businesstrust, an estate, a trust, a partnership, a joint venture, a limited liability company, an unincorporated association, a sole proprietorship, twoor more of any of the foregoing having a joint or common interest, or anyother legal or commercial entity;(20) Pyramidpromotional scheme means any plan or operation in which a participant givesconsideration for the right to receive compensation that is derived primarilyfrom the recruitment of other persons as participants in the plan or operationrather than from the sales of goods, services, or intangible property to participantsor by participants to others. A limitation as to the number of persons whomay participate, or the presence of additional conditions affecting eligibility,or upon payment of anything of value by a person whereby the person obtainsany other property in addition to the right to receive consideration, doesnot change the identity of the scheme as a pyramid promotional scheme;(21) Referralor chain referral sales or leases means any sales technique, plan, arrangement,or agreement whereby the seller or lessor gives or offers to give a rebateor discount or otherwise pays or offers to pay value to the buyer or lesseeas an inducement for a sale or lease in consideration of the buyer or lesseegiving to the seller or lessor the names of prospective buyers or lesseesor otherwise aiding the seller or lessor in making a sale or lease to anotherperson if the earning of the rebate, discount, or other value is contingentupon the occurrence of an event subsequent to the time the buyer or lesseeagrees to buy or lease;(22) Servicemark means a mark used in the saleor advertising of services to identify the services of one person and distinguishthem from the services of others;(23) Telecommunicationsservice means the offering of telecommunications for a fee directly to thepublic, or to such classes of users as to be effectively available directlyto the public, regardless of the facilities used;(24) Trademark means any word, name, symbol, or device or anycombination thereof adopted and used by a person to identify goods made orsold by such person and to distinguish such goods from goods made or sold by others;(25) Trade name means a word or a name, or any combination ofthe foregoing in any form or arrangement used by a person to identify such person's business, vocation, or occupationand distinguish such business, vocation, or occupation fromthe business, vocation, or occupation of others; and(26) Use or promote theuse of, for purposes of subdivision (a)(12) of section 87-302, means contrive,prepare, establish, plan, operate, advertise, or otherwise induce or attemptto induce another person to participate in a pyramid promotional scheme, includinga pyramid promotional scheme run through the Internet, email, or other electroniccommunications. SourceLaws 1969, c. 855, § 1, p. 3221; Laws 1974, LB 327, § 1; Laws 1993, LB 121, § 557; Laws 2002, LB 857, § 6; Laws 2010, LB801, § 1.Effective Date: July 15, 2010 Cross ReferencesSecurities Act of Nebraska, see section 8-1123. AnnotationsThe terms of the Uniform Deceptive Trade Practices Act provide only for equitable relief consistent with general principles of equity. State ex rel. Stenberg v. Consumer's Choice Foods, 276 Neb. 481, 755 N.W.2d 583 (2008).Attorney General and associates immune from suit for libel after initiating deceptive practices suit against plaintiffs. Ledwith v. Douglas, 568 F.2d 117 (8th Cir. 1978).Successor to manufacturer in representing it owned trademark owned by distributor and in using trademark in its corporate name violated this act. Wrist-Rocket Manuf. Co., Inc. v. Saunders, 379 F.Supp. 902 (D. Neb. 1974).