Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Intellectual Property Law

PDF

University at Buffalo School of Law

Series

2023

Articles 1 - 4 of 4

Full-Text Articles in Law

A New Addition To The Trademark Litigator's Tool Kit: A Neuroscientific Index Of Mark Similarity, Mark Bartholomew, Zhihao Zhang, Ming Hsu, Andrew S. Kayser, Femke Van Horen Dec 2023

A New Addition To The Trademark Litigator's Tool Kit: A Neuroscientific Index Of Mark Similarity, Mark Bartholomew, Zhihao Zhang, Ming Hsu, Andrew S. Kayser, Femke Van Horen

Journal Articles

With trademark law always striving to keep abreast of new developments in science and technology, the authors of this article propose an innovative, neuroscience-based approach to answering the time-honored question of whether likelihood of consumer confusion exists in a particular dispute.


Historical Kinship And Categorical Mischief: The Use And Misuse Of Doctrinal Borrowing In Intellectual Property Law, Mark Bartholomew, John Tehranian Nov 2023

Historical Kinship And Categorical Mischief: The Use And Misuse Of Doctrinal Borrowing In Intellectual Property Law, Mark Bartholomew, John Tehranian

Journal Articles

Analogies are ubiquitous in legal reasoning, and, in copyright jurisprudence, courts frequently turn to patent law for guidance. From introducing doctrines meant to regulate online intermediaries to evaluating the constitutionality of resurrecting copyrights to works from the public domain, judges turn to patent law analogies to lend ballast to their decisions. At other times, however, patent analogies with copyright law are quickly discarded and differences between the two regimes highlighted. Why? In examining the transplantation of doctrinal frameworks from one intellectual property field to another, this Article assesses the circumstances in which courts engage in doctrinal borrowing, discerns their rationale …


From Scanner To Court: A Neuroscientifically Informed “Reasonable Person” Test Of Trademark Infringement, Zhihao Zhang, Maxwell Good, Vera Kulikov, Femke Van Horen, Mark Bartholomew, Andrew S. Kayser, Ming Hsu Feb 2023

From Scanner To Court: A Neuroscientifically Informed “Reasonable Person” Test Of Trademark Infringement, Zhihao Zhang, Maxwell Good, Vera Kulikov, Femke Van Horen, Mark Bartholomew, Andrew S. Kayser, Ming Hsu

Journal Articles

Many legal decisions center on the thoughts or perceptions of some idealized group of individuals, referred to variously as the “average person,” “the typical consumer,” or the “reasonable person.” Substantial concerns exist, however, regarding the subjectivity and vulnerability to biases inherent in conventional means of assessing such responses, particularly the use of self-report evidence. Here, we addressed these concerns by complementing self-report evidence with neural data to inform the mental representations in question. Using an example from intellectual property law, we demonstrate that it is possible to construct a parsimonious neural index of visual similarity that can inform the reasonable …


Nonobvious Design, Mark Bartholomew Jan 2023

Nonobvious Design, Mark Bartholomew

Journal Articles

To earn patent protection, a claimed product design must be “nonobvious.” Yet while nonobviousness has been described as “the heart” and “cornerstone” of the utility patent system, in the design patent context, the term has become next to useless. Instead of actually policing nonobviousness in design, modern courts grant patent rights to any work that is not an exact replica of another. The problem, judges maintain, is that comparing one visual design against another demands the use of aesthetic judgment and aesthetic judgment is an instinctual, subjective process incapable of legal definition. Recent neuroscientific studies of aesthetic judgment dispel some …