Exclusive rights to use common, descriptive, or generic words

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) RICIIAIW.S. COHEN ATTOf1NEY GUJEHAl r,._\•i;\l~~~l J'_>.''...--~ ' . .\:. I , " ~l ,, ,!_Ji I . . , ~~-- :1 J . i 4W Zf fol\.~, )r-• •'rl\JjH'\. / ----- ST.·\'l'F ()I< MAIN!•: Ll!-:l'J\Wl'i\lEN'J' OF Till-: .\'l"J'Ol{Nl•:Y (;1,:NE1l1\L September 26, 1979 Mr. David S. Silsby Director, Legislative Research State House Augusta, Maine 04333 Dear Mr. Silsby: SI FPJIEN 1.,. ()JA\HJl\ll JOHN f, ( iiFAS(JN .IOIIN M, R. PA'fER~ON I(, Hll:ll I J. s·rou DEPUTY ATTOHliE'!fi GENEli/\t. Based on my research,which is detailed in the attached Memorandum of Law, I have concluded that no one has exclusive rights to use common, descriptive or generic words. Exclusive rights cannot be obtained in generic terms; rights in descrip- tive terms can only be obtained by showing that they have acquired a secondary meaning. However, even given such a showing, the public is free to use descriptive terms in their primary sense. As the courts have long recognized,a contrary rule would lead to an intolerable restriction of the language. Even if trade or service mark rights have been perfected in a particular word, those rights merely protect the holder against infringement. Infringement is defined by both the federal and common law as use of a valid mark in such manner as is likely to cause confusion, or to cause mistake, or to deceive. In my opinion, statutes use words in their primary sense as the vehicle for con@unicating ideas in the form of rules to the public. Consequently, infringement could only occur if a statute created a proprietary program similar to a pre-existing private program, using a mark so similar as to cause confusion, etc., in the mind of the public. Dased upon my limited experience, the chance of this occurring is negligible. An example may be the program discussed in the letter from the National Merit Scholarship Corporation. You should note in this regard that the corporation could not acquire the exclusive right to use the words as such, but merely to use the words as marks free from infringement. - ' Mr. David S. Silsby September 26, 1979 Page 2 Even if the State did infringe upon a protected interest, the Eleventh Amendment to the United States Constitution prevents the State from being made Defendant in a lawsuit in a Federal Court. This sovereign immunity does not extend to a state officer acting in his individual capacity as agent of the State. Furthermore, the Tenth Amendment, as recently interpreted by the Supreme Court, prohibits Congressional intervention with essential state functions, again on a theory of sovereign immunity. Presumably, the drafting and enactment of statutes constitutes such an essential state function. This inununity most likely would not extend to proprietary functions. Finally, the State possesses an absolute immunity from suit on State unfair competition causes of action. In summation, the State is under no duty to discover or disclose protected words or combinations thereof. 'I'he possibility that language contained in a State statute would infri11ge upon a protected mark is so negligible as to warrant little, if any, consideration. Even if such infringement did occur, the State may Wt?l l be immune from suit. The one Eixception would be in the case of a proprietary program of a nature similar to a pre- existing private program. If you have any further questions, do not hesitate to call. JFD/reb ;1'~7!-sj)~ JOHN F. DANA - Assistant Attorney General Consumer and Antitrust Division I ) .. STATE CJF MAIJ>JE Inter--Depurtmental M'emornndum Date __ _§epternber 2~.!-~~Z_9 To From David Silsby, Director John F. Dana, Assist_a_r-1t---~-f~p Dept. Legislative Research Attorney General ---- Subject ----~~_tent of Exclusiye Rights 1n Trade and Service Marks; Effect, on Legislative Drafting -,------ A. Definiti.on Pursuant to Section 45 of the 1946 Federal Trademark Act: The term "trade--mark" includes any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others. The term "service mark" means a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others. Titles, character names and other distinctive features of radio or television programs may be regis- tered as service marks notwithstanding that they, or the programs, may advertise the goods of the sponsor. The definition of trademark is taken from Upton, Law of Trademarks (1890) and merely codifies the common law. See, Vandenburgh, Trademark Law and Procedure, §1.20 (2d Ed., 1968). The definition of service mark ls adapted from that of trademark, the sole dif- ference being trademarks indicate the origin of goods while service marks indicate the origin of services. Consequently, decisions relating to trademarks are applicable by analogy to service marks. See, Vandenburgh, §1,30. B. Creation 1. Ownership of a mark is acquired by adopting and using the mark to identify the origin of goods or services. Registration, whether federal or state, does not, by itself, confer ownership. Adoption and use is necessary. See e.g., United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90 (1918). Conversely, federal or state registration without proper adoption and use confers no rights in the mark. United Drug Co., ~~·a; Heinemann v. General Motors Corp., 342 F.Supp. 203 (Ill. 1972). A certificate of regis- tration on the principle federal register does, however, constitute prima facie evidence of the validity of the registration, the registrant's ownership of the mark, and the reg.1.strant's exclusive right to use the mark in commerce in connection with the goods or services specified in the certificate, subject to any conditions or limitations stated therein. Federal Trademark Act of 1946, §7(b), 15 U.S.C. §1057(b). Section F> of the Act does provide Dav:l.d Silsby September 26, 1979 Page 2 that a mark r-egisterecl on L'ne pr1ncip:lf: r·ee;lster l:lecorrH?'.3 incoh-- testable aft el' five years continuous use. However, Sub~3(::ction (II) provick:s that 11 no incontef3Lable ric;ht, shall be r,1cqu:Lred in a ma!'k which i.s the commcJn desc.ript.i ve name of' any artJcJe 0·1· substance, pa tented or otherwlse. 11 C. Rights in Descr·ipt:i.ve a.r.d General \.,fords Courts have long recor~;nlzecl that, givE:n the Urni tecl number of words in the language, the gr'anU.ll?. of exclut,Jve rit.£hts in a word would prevent competitor't; frorn advert:i:3Jng their products or servict:2,. See_, e.g., CES Publ1shj n ·, Cor). v. St. Rep;? s Publications, Inc., 531 F.2D 11 2D CLr. 1975; EsquiroL.Inc. __ v. E. s g_ u ire_ Su pp er Mfg . Co . , 2 lJ 3 F . 2 D 5 /40 , ~; ll] ( 1st Ci r . l 9 ~) 7 ) ; rrelechron, Inc. v. rrelicon Cor.:p_:__, 19')1.8 F.2D 903 (3d Cir. 195;2). See generally, Vandenburgb_, §I1. 30. Th1.1:3, absent a L,econdary meaning, courts will not recognize trade or service mark rtghts in descriptive words. E~~' Delaware & Hudson Canul Co. v. Clark, 80 U.S. (13 Wall) 311,323 ( 11 Nor can a generic name, or· a name merely descriptive of an article of trade, of its qualities, ingredients, or characteristics, be employed as a traclem,n·k and the exclusive use of it be tmtitJ.ecl to le[r,al protection. 11 ); g,or'l};·- Warner Corp. v. YoI'lc-Shipley, Inc., 293 F.2D BS (7th C1r. 19GlJ. Descriptive words are d:Lv:Lded Jnlo two cateu;or:lm,: v10.nls which are the common desc1·iptive name of the product or servj cc are termed "generic 11 ; words which describe the service or produet are 11-descripti.ve. 11 Vandt:~nbure;r~, §lJ. 30. Generally, one cannot acquire rights in a ge11eric term because that term cannot acquire a secondary meaning. !!_~!:1£.L Heide, I111.:. v. George Ziegler Co_. __ , 35L1 F.2D 574 (7th Cir. 1965); DadirrLrn v. Yaculdan, 9B F. B7c' (1:::.t C.lr. 1900) (type of f'ood); Sclwller E:cos,..2_I11c. v. !Ic1.n:; C. I3Jcl<:, Inc., :no U.S. P.Q. 1131,L133--·(cum. oC Pnt. 19~;6). ['''NyJori·- ized I Js a word wh:Lch convey::i a pr1rnary meaning of treat.i.n[': or f:Lnishi.ng :Ln some manner vd th nylon, ancl r,:·sponde11t. user; it to descr:Lbe: such a treatment or fini~,:;h. OtlicrD tha11 re2.ponclcnt who treat or Li.nish fabrics 01· othe:i' mater·:La1s in some manner wlth nyloll mcty employ ,\11th equ81 truth anu equal 1·ight Lh·,· ~;a111e word for the same purpose. Under such circumstances, :i..e., when a word ls used :Ln its p1'imary sense, Jt cannot acquire-·a-~icconda.ry meaning. 11 ) l. §econdary Meaning To be valld, all trade or service ma.rks muc:,t be dis- linct1ve. Standard Paint Co. v. 'l1ri11idad A:3phalt Mfg. Co., 220 U.~;. L111G,I153 (1911). As stated, st~P!~, u;ener:Lc terms can never be distinctive with regard to:::~ particu.lai· good or service. However, mere1y des cript i. ve termf; may bee orne David Silsby September 26, 1979 Pae;e 3 a valid mark by acquiring a secondary meaning. Armstron Paint and Varnish Works v. Nu-Enamel Corp._, 305 U.S. 315 193 ); Thaddeus Davids Co. v. Davids, 233 U.S. ~61 (191~). Secondary meaning refers to the process by which: a word or phrase ori11::Lnally, and in that senr.;e prj_marily, incapable of exclusive appropriatton with reference to an article on the market, because geographically or otherwise descriptive, might never- theless have been usc·d so long and so c xc 1 U!J l ve ly by one producer with reference to his article that, :Ln that trade or to that branch of the purchasing public, the word or phrase had come to nwan that the art:i.c1e was his product; in other word::.;, liad come to be, to them, his trade ma1•k. ,'3o j_t was said that the word h,1d come to hav1:.: a secono~ll'Y rnc:ining, ali.;houc;h in this phrase, "secondary meaning,'' ::,een1s not happily chosen bE:cause, in the 11roited fiel<l, this new mean:ing is primary rather than secondary; that is Lo say it is 1 1n that fie lcl, the natural mean hq.1;. G. & C. Merriam Co. v. Saalfie1d, 198 F.2D 369,373 6th Cir. 1912). 'I'he existence of secondary meaning depends upon the significance of the descriptLve words to purchasers located in the area of the alleged infringement. '11ruck E ui ment Service Co. v. Freohauf Cor ., 536 P.2D 1210 (8th ~ir. 197 ; President and Trustees of Colby gollege v. Colby College - N.H., 508 F.2D 804 (1st Cir. 1975); Briggs v. Nat'l. Wafer Co., 215 Mass. 100,102 N.E. 87 (1913); Cohen v. Nagle, 190 Mass. 4, 76 N.E. 276 (1906) ("Plaintiff's burden is to show that th1s secondary meaning and the risk of con- fLwion exists in the srnne potential market. 11 ). The custorne:n~ to whom the marl{ has acquired a secondary meanJnc; and tho:,e to whom the alleged infringer sells must be the same. American Luggage Works, Inc. v. U. S. rrrunk Co., _ 1:58 F'. ~~~upp. ~,0 (Mass. 1957) Aff'd. 259 P.2D 69 (1st Cir. 195tn. ;_i, Extent of Rir;hts in Second:u·y Meanine; . __ _ Hights to a mark Jn det,cript:Lve terms which have ac.:qulrecl a secondary meanins; are co-extensive with r-ishts in any other val:i.d mark. Elgin National Watch Co. v. I 111.no ir3 Watch Ca~;e Co., 179 U.S. 6"65,6711 (1901). JJowever, othep~:; are entJtled touse those t8Plflfo in their primary f:icnse. Thaddeus David,, Co. v. Davids, 233 U.S. 461 (19111); K:Lki Undies Corp. v. Alexanders Dept. Stores, Inc. , 390 P. 2D 6021 ( 2d Cir. 1-'.'.fCB); Sylvania Elec. Products, Inc. v_:__l!~tra Elec. Lam12____fo_.:.., ;24r/ F'. 2D 730 ( 3d C:ir. 1957). This right doe.s not extend to David Silsby September 26, 1979 Page 11 using the material witb such prorninence as to give the appearance of a trade or service mark. Venetiannire Cor . of Amer-lea v. A & P Im ort Co., ~29 F.2D 1079 2d Cir. l CJ 7 O) ; Fro~, t j_ e Co. v. D~'_:_ _ _E.1:_'[)I2 e_l~ __ g_~~-~ , Vil .fi1. 2D 3(>3 (5th C.ir. 1965); Safewa1, ~)tores, Jnc. v. ;:3afew;::1:_l Properties, Inc., 307 P.2D '195 (c~d Cir. 19()2). D. Effect of Registration 1. No Re£istration. Since r:Lc;lJts are created through c1dopt ion and UF,e, the territorial protection accorded th0se rithts is depenrtent upon the t err i to P 1 a 1 ext er. t o f W3 c . I-1 c1 no v e: r :.:: tu r Mi 11:l n v C o . v . Me t c n l f , 2 lW O . S . LI O 3 ( l 9 Hi ) . ------ •"· 2. Federal Registration. Generally speaking, the rights of.' the o\mer of a federal registration will extend nat:Lornvi.cle wlt11out r-espect to the territorial use of tl1e mark, cr.si,uming: (a) The r·egistrant L, Lhe prior w;cr of tl1e mark; and (b) 'I'he nonregistrant, rnust be lU3ine in corrun(~rce within the jurisd:iction of the Congr·css. Fe d e r a 1 Tr> a cl em al' k i\ c t o f 1 9 l I (; , ~ 3 2 ( l ) , l 5 U . ;3 • C . I\ . § 1 1 l L1 ( l ) ; Peter Pan Restaurants v. Peter Pc:;r1. D1ner....t Jnc. , 150 P. ~;upp. 5311 (D. n. l. 1957). See Discu:H;ion at F(ffC.1r;· lnfra_. Tl lL s g c 1 t e L' al i z a L ion J ::; ;3 u !J j (:c> c t t o L; c v e 1 · J.1 c :.1 v eat s w h t cl 1 c1. r· e dj_scu::,i3Cd in Vandenburi.;l~ at §2.i:;i. Infringement Section 32(1) of the F'eder:J.1 Tr,1c!emarl: !tcL of 1911G, U.S.C. J.Jlll(l) provj_des: (1) Any per::~on who ~,hall, wlthout the· corn:c•nt of the registrant (a) t.rne Jn commer;:c any reproduct_ion, euunterfeit, copy, or col(H'.'tblc, lJrnJLation of cl registerecl mark in connection with the ScLle, offering for s3le, distribution, or advertising of any c:ooch; ,.ir service~; on or j_n connection with which ~ntch use is U.kely to cau;3e eonf1.1:3ion., 01· to cauE,c rnlstakc, ur to clcceiv(~; ot' David Silsby September 26, 1979 Page 5 (b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colo:rable imitation to labels, signs, pr.int:3, packages, wrappers, receptacles or advertise- ments intended to be used in commerce upon or j_n connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cuuse mistake, or to deceive shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under sub- section (b) hereof, the registrant shall not be en- titled to recover profits or damages unless the acts have been comm1tted w1th knowledge that such iinitat:lon 1s intended to be used to cause confusion, or to cause mistake, or to deceive. Thus, infringement is cond1tiooed on ''sale, offering for sale, distribution, or advertising ... rr(lJ The test for infringement is that a confl1ct exists whenever the marks in issue are suffic1ent- ly similar under the circumstances so as to be ''likely to cause confusion or to cause mistake, or to deceive." Section 32(1) codifies the common law. See, Amoskeag Mfg. Co. v. T~airH~~, 101 U.S. 51,65 (1880); McLean v. Flemj_ng, 96 U.S. 2L15 (1Ef71ff; [~~_"._. Johnson & Son, Inc. v. Johnson, 175 F.2D 176 (2d Cir. 19491. Applyj_ng this t~st to descriptive words which constitute "weak" marks, the goods or serv1ces mw~t be identical or at least very closely related before a likelihood of confusion will be found. See, Vandenburgh, p. 144 n. 34 (collecting cases). It should be noted that the U. S. Court of Appeals for the First Circuit has held specifically that the law of unfair competition, including trade and serv1ce marks, now protects eleemosynary inst i tu ttons. The President and Trustees of Co:~Q,Y_ Colleve - New Hampshire, 508 F.2D 804 (1st Cir. 1975). See, De Cos ta v. Columbia Broadcasting Sys tern, Inc. , 52 0 F. 2D 1f99- ( 1 ) The federal act ion for infrinr:emen t is also cond:L ti oned on the alleged 1nfrtnger' s "use :Ln commerce." 'l1r1:Ls element is discussed at Section P(l)(a), infra. David Silsby September 26, 1979 Page 6 (1975) CERT DENIED 96 s.ct. 856 (1976). (Quoting Callahan_, The Law of Trademarks, §1.1: The happenstance that they are nonprofit-seeking ventures, and therefore removed ... from the rigors of buslnes:3 compet.ttion, nelU1er el1m:lnate:, the clement· of competition nor disentitles them to protection against the unfair competition of similar organizations). However, the application of the federal law of trade and service marks to language contained in state legislation and statuto1·y programs raises sign:1.ficant conr:,titutional and Jur-Lsdictiunal isf;ues. F. Constitutional and Jurisdictional Aspects 1. Federal Causes of Action. a. Commerce Clause Jurisdiction. As stated, supra, the federal infringement action created by §32(1) of the Federal Trademark Act of 1946 is conditioned on the alleged infringer's "use in commerce." §45 of the Act defines commerce as ''all commerce which may lawfully be regulated by Congress." Thus, the Act invoker.; the commerce power which the United States Constitution, Article I, §8 grants to the Coni:;ress. Disregarding for the moment issues of sovereign im- munity possessed by the states qua states, Congref3S possess plenary power to regulate interstate commerce subject only to the Constitution's affirmative prohjbJtions on the exer·cise of federal authority. See, Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 194_ ( 182L1). As interpreted by the Supreme Court in W1.clrnrcl v. Filburn, 317 U.S. 111 (19112) and subsequent cases, this power extends to all activities the regulation of which may effect c o m111 er c e . See , e • g . Pere z v . U . S . , 4 0 2 U . S . 1 lj 6 ( 1 '.) 7 l ) ( up ho 1 d :L n t; 18 U.S. C. A. §1891 et_ ~ which criminalized purely intraotcJ,tc loan sharking); Katzenbach v. McClung, 379 U.S. 294 (1964) ( up ho 1 d in g Li 2 U • S . C • A • § 2 0 0 0 a ) . This plenary commerce clause jurh,diction is, :Ln fact, ::1ubJect to two affirmative prohibitions when sought to be applied against the states. b. The Eleventh Amendment. 'I'he eleventh amendment( 2 ) constitutes a limit on the federal judicial power to provide remedies for state violations of federal rights. <2 ) 1l'he Jucliclal power of the United ~3tates sllal.l not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the Un:Lted States by Citizens of another State, or by Citizens or Subjects of any Forelgn State. David Silsby September 26, 1979 Page 7 . Although the extent of the immunity conferred by the eleventh amendment is not entirely clear, see Tribe, American Constitutional Law (1978) §§3-34 through 3-38, the Supreme Court recently has affirmed congressional power to abrogate that immunity, providetl that the exercise of power will not be presumed without clear evidence of congressional purpose. Edelman v. Jordan, 415 U.S. 279 (1974); Em lo. ees v. DeJartment of Public Health & Welfare, 411 U.S. 279 1973); cf., Fitzpatrick v. Bitzer, 27 U.S. -~ (1976). As stated by Tribe., "the amenability of states to suit must be specifically addressed by federal legislation, and Congress must make its intention to treat states like private parties unmistakably clear." Tribe, at 136 ~ 137. 1rhe defin.i tion of use in commerce contained in §115 of the Pederal Trademark Act clearly does not satisfy this test. Consequently, the federal courts have no power to enforce against the states an action for infringement pursuant to §32(1) of the federal act.C3) The eleventh amendment does not protect individual state officers from suit ''even though compliance by the officer will often be compliance by the State and.the costs of compliance will be born by the State Treasury. 11 rrribe at 132 citing Edelman v, Jordan, 415 U.S. 651, 668 (1975) (reversing a District Court order requiring state welfare officials to pay out illegally withheld welfare benefits: 11 [ the order J requires payrnen ts of state funds, not as a necessary consequence of compliance in the future with a substantive federal question determination, but as a form of compensation"). Thus, an action against a state agent;, in h:ls individual capacity for. monetary damages is not barred.· See, ~, Scheup. v. Rhodes, 1116 U.S. 232, 237-38 (1974); In Re Ayer~l23 U.S. 4Z13, 500-01 (1887) ( 111.rhe defendants, through professing to act as officers of the State, are threatening a violation of the personal or property rights of the complainant.") S:lmilarly, injunctive relief against a state officer is not prohj.bited. Ex Parte Young, 209 U.S. 123 (1908). c. The Tenth Amendment. In National League of Cities v. Usury_, 1126 u,y~ 833 (1976), the Supreme Court rev;talized the tenth amendment~ 1 J by voiding a 1974 congressional amendment to the Fair Labor Standards Act ( 3) The State's lrmnuni ty :i. s subject to waiver. See_, Clark v. Barnard, 108 U.S. l1J6,LILI7 (1883). (LI) 'The ten th amendrnc'!n 'c provides: The powerf, not <ie]q':Dted i.cl the United .C)l;atf:u liy the Constitution, nm· prol1ibiteci by Jt to the :.~;t;ates, are reserved to tlw States 1·especLlvc:ly, or to the people. David Silsby September 26, 1979 Page 8 as inconsistent with state sovereignty. The amendment had sought to impose federal minimum wage and maximum hour standards· to state and municipal employees. r.rhe Court stated, at pages 84L1-LJ5: Appellee Secretary argues that the cases in whJ.ch this Court has upheld sweeping exer- cises of authority by Congress, even though those exercises pre-empted state regulation of the private sector, have already curtailed the sovereignty of amendments to the Fair Labor Standards Act. We do not agree. It is one thing to recognize the authority of Congress to enact laws regulating individual businesses necessarily subject to the dual sovereignty of the government of the Nation and of the State in which they reside. It is quite another to uphold a similar exercise of congressional authority directed, not to private citizens, but to the States as States. We have repeatedly recognized that there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner. States have significantly greater immunity from congresstonal power-when that power is sought to be exercised via the commerce clause as opposed to Section 5 of the fourteenth amendment. Compare Nat!S?n_al League of Cities with fitzpatrick v. Bitzer, 1127 U.S. ~115097b). Although not entirely clear fl'Om the decir-don, the key factor 1n determining whether a particular exercise of congressional com0erce power is constitutional appears to be whether the state function sought to be regulated is essentj_al to the continued existence of the state as a separate sovereign. It should be noted in this regard that National League expressly sar1ctions congressional interference with routine, proprietary functions. 426 U.S. at 854 & n.18. See, U.S. v. California, 297 U.S. 175 (1936) (sustaining federal regulation of state owned jnterstate railroads). · 2 State Causes of Action. a. Sovereign Immunity In Drake v. Smith, 390 A.2D 541 (Me. 1978), Justice Wernick affirmed the continued vitality of sovereign immunity by holding that the state 1~ absolutely immune from suit in the absence of express legislative consent to the contrary. The Maine Tort Claims Act> 14 M.H.S.A. §8101 et§~'....' provJ.des in §8103(1): David Silsby September 2G, 1979 Page 9 Execept as otherwise expressly provided by statute, all governmental entites shall be immune from r',Uit on any and all tort claims seeking recovery of damaGes, When immunity ls removed by this chapter, any clalm for damages shall be brought in accordance with the terms of thls chapter. 14 M. R. S. A. §8104, "Exceptions to Irnrnuni ty)' doer, not except an action for unfair competition by infringement from the general rule of irnmuni ty. MorE:over, according to the express consent rule of both Drake and §8103(1), 5 M.R.S.A. §206 et seq., the Unfair 'I'rade Praetices Act, does not cons ti tute·-a sufficient manifcstat:Lon of consent to vrnlve tlle ;_;t-,ate 's immunity. JD/trnh