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Full-Text Articles in Law
Selling Aloha: The Fight For Legal Protections Over Native Hawaiian Culture, Angela Louise R. Tiangco
Selling Aloha: The Fight For Legal Protections Over Native Hawaiian Culture, Angela Louise R. Tiangco
William & Mary Journal of Race, Gender, and Social Justice
In 2018, a Chicago-based restaurant attempted to enforce a registered trademark of “Aloha Poke” by sending cease-and-desist letters to small businesses with names containing some variation of the phrase. Most of those businesses were owned by Native Hawaiians, causing an uproar due to the terms “aloha” and “poke” having strong ties to traditional Hawaiian culture. Known as the Aloha Poke case, it brought attention to the fact that the United States currently has no definite legal framework to protect the cultural heritage of Native Hawaiians, much less their intangible cultural heritage.
This Note addresses the lack of federal recognition granted …
Cannabis, Consumers, And The Trademark Laundering Trap, Viva R. Moffat, Sam Kamin, Tim Maffett
Cannabis, Consumers, And The Trademark Laundering Trap, Viva R. Moffat, Sam Kamin, Tim Maffett
William & Mary Law Review
At the moment, cannabis companies cannot acquire federal trademark protection for their marijuana products because the ''lawful use" doctrine limits trademark registration to goods lawfully sold in commerce. Given that marijuana remains illegal under federal law, this may not sound like much of a problem, but it has serious consequences for consumers. Without trademark rights, one cannabis company can simply use the brand name of another, more prominent, company on its marijuana products, and consumers will assume that they are getting the products they have come to rely on, with potentially dangerous results. The current approach of the United States …
Endorsing After Death, Andrew Gilden
Endorsing After Death, Andrew Gilden
William & Mary Law Review
An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and have been increasingly embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Monroe’s name, have successfully brought false endorsement claims under section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified “@marilynmonroe” page. Marilyn Monroe survives today as a …
Appendix: Cannabis, Consumers, And The Trademark Laundering Trap, Viva R. Moffat, Sam Kamin, Tim Maffett
Appendix: Cannabis, Consumers, And The Trademark Laundering Trap, Viva R. Moffat, Sam Kamin, Tim Maffett
William & Mary Law Review Online
Appendix to article in William & Mary Law Review vol. 63, no. 6 (2022), "Cannabis, Consumers, and the Trademark Laundering Trap" by Viva R. Moffat, Sam Kamin, and Tim Maffett.
Trademark Law And Consumer Constraints, Laura A. Heymann
Trademark Law And Consumer Constraints, Laura A. Heymann
Faculty Publications
Trademark law’s focus is on the consumer. Both the trademark literature and the marketing literature, however, tend to assume a consumer with few constraints on economic or cognitive processing resources. For example, scholars have argued that some confusion in the marketplace is not only inevitable but is also an overall positive in that encountering confusion trains consumers to be more resourceful and to learn how to interpret marketing communications more carefully. But not all consumers have the same level of cognitive and economic resources. Disadvantaged consumers—such as those not literate in the English language, those with lower socioeconomic status, and …
Shape Mark (Trade Dress) Distinctiveness: A Comparative Inquiry Into U.S. And E.U. Trademark Law, Qadir Qeidary
Shape Mark (Trade Dress) Distinctiveness: A Comparative Inquiry Into U.S. And E.U. Trademark Law, Qadir Qeidary
William & Mary Business Law Review
Nowadays, the increasing application of visual elements, as non-traditional trademarks, to convey commercial information has brought about some new challenges to pioneer legal systems. In this regard, the question of shape marks’ (trade dress) distinctiveness has also caused some hot debates in U.S. and EU trademark law. Indeed, the most challenging legal question before those legal jurisdictions is about the method of transplanting the concept of trademark distinctiveness into the mechanism through which shape marks, as visual mediums, perform a trademark communicative function. Technically, the indefinite nature of shape marks or trade dress marks and lack of a definitive or …
Trademarks In Conversation: Assessing Genericism After Booking.Com, Laura A. Heymann
Trademarks In Conversation: Assessing Genericism After Booking.Com, Laura A. Heymann
Faculty Publications
It is a fundamental principle of U.S. trademark law that to serve as a trademark, a word or phrase must “indicate the source” of the goods or services with which it is associated and, conversely, that a term that is understood to be the common name of a good or service is “generic” and cannot be protected as a trademark. Yet it still seems difficult to determine exactly what each concept means, particularly when the actual “source” of any goods or services might be opaque to consumers.
In part, this difficulty comes from the fact that status as a trademark …
The Meaning Of Mcdonald's [(R)], Laura A. Heymann
United States Patent And Trademark Office V. Booking.Com B.V.: How Do We Know When Something Is A Name?, Laura A. Heymann
United States Patent And Trademark Office V. Booking.Com B.V.: How Do We Know When Something Is A Name?, Laura A. Heymann
Popular Media
No abstract provided.
Right On Time: A Reply To Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, And Van Houweling, Dotan Oliar, James Y. Stern
Right On Time: A Reply To Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, And Van Houweling, Dotan Oliar, James Y. Stern
Faculty Publications
A simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could …
What We've Got Here Is A Failure To Indicate, Laura A. Heymann
What We've Got Here Is A Failure To Indicate, Laura A. Heymann
Popular Media
No abstract provided.
Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern
Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern
Faculty Publications
How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …
Surveying The Field: The Role Of Surveys In Trademark Litigation, Laura A. Heymann
Surveying The Field: The Role Of Surveys In Trademark Litigation, Laura A. Heymann
Popular Media
No abstract provided.
Trademark As Promise, Laura A. Heymann
Naming, Identity, And Trademark Law, Laura A. Heymann
Naming, Identity, And Trademark Law, Laura A. Heymann
Faculty Publications
As the process of creation in the age of digital media becomes more fluid, one pervasive theme has been the desire for attribution: from the creator’s perspective, to receive credit for what one does (and to have credit not falsely attributed) and from the audience’s perspective, to understand the source of material with which one engages. But our norms of attribution reflect some inconsistencies in defining the relationship among name, identity, and authenticity. A blog post by a writer identified only by a pseudonym may prove to be very influential in the court of public opinion, while the use of …
The Grammar Of Trademarks, Laura A. Heymann
The Grammar Of Trademarks, Laura A. Heymann
Faculty Publications
How do people talk when they talk about trademarks? If trademarks have
become, as linguist Geoffrey Nunberg suggests, our “new global tongue,”
perhaps we should pay greater attention to the grammar we use when we
talk about them. We use “Coke” to refer to the Coca-Cola beverage in the
North, and “coke” to refer to any kind of soda in the South, yet we still
manage to get the drinks we desire. We use trademarks as verbs—we
“xerox” a document or “tivo” a television program—without losing sight
of the fact that “Xerox” and “TiVo” are brands of particular products.
We …
The Public Interest And The Right To Copy Nonfunctional Product Features
The Public Interest And The Right To Copy Nonfunctional Product Features
William & Mary Law Review
No abstract provided.
Rules Defining The Use Of Trade Terms In Patent Applications, F. Prince Butler
Rules Defining The Use Of Trade Terms In Patent Applications, F. Prince Butler
William & Mary Law Review
No abstract provided.