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Articles 31 - 33 of 33
Full-Text Articles in Law
The Ethics Of Unbranding, Jeremy N. Sheff
The Ethics Of Unbranding, Jeremy N. Sheff
Faculty Publications
This Essay explores the ethical implications of the phenomenon of "unbranding" that has recently been discussed in popular and scholarly literature. It compares two extant definitions of unbranding and examines each under alternative ethical theories of trademark law, specifically deontological and consequentialist theories. With respect to each of these theories, the Essay examines the ethical questions raised by the existence of asymmetric information between brand owners and consumers. This includes asymmetries not only with regard to information about products, but also with regard to information about consumer decision-making processes. The latter asymmetry presents conflicts between deontological and consequentialist conclusions regarding …
Originality Proxies: Toward A Theory Of Copyright And Creativity, Eva E. Subotnik
Originality Proxies: Toward A Theory Of Copyright And Creativity, Eva E. Subotnik
Faculty Publications
This article contends that a definitive account of originality as a legal construct is not possible and that, as a result, the current low threshold for originality should be maintained. Under this analysis, most photographs, so long as they comply with certain requirements, should be granted protection, at the very least, against exact copying (for example, through digital copying and pasting). Arriving at this conclusion, however, requires a return to first principles, that is, to the copyright concepts of authorship and originality. These concepts saw their most recent articulation by the Supreme Court in the 1991 landmark decision of Feist …
The (Boundedly) Rational Basis Of Trademark Liability, Jeremy N. Sheff
The (Boundedly) Rational Basis Of Trademark Liability, Jeremy N. Sheff
Faculty Publications
This article argues that trademark infringement and dilution are best understood as commercial behavior that manipulates the cognitive biases of consumers, and as such threatens to render their heuristic judgments persistently inaccurate. In this view, trademark liability—whether imposed under the label of infringement or dilution—serves neither to protect property rights of trademark owners, nor to protect them against the unfair trade practices of competitors, but to shape consumer markets in such a way as to conform to the innate cognitive processes of boundedly rational consumers. The trademark regime can thus be understood as a legal apparatus designed (albeit perhaps unconsciously) …