Law Commons^™

Mining The Nft Goldrush: A Prospective Guide To Drafting Nft Contracts, Dejuawn "Dj" Griffin

Mercer Law Review

Nonfungible tokens (NFTs) are an emerging digital asset class that present unique and innovative means of commercialization. Artists and creators “minted” and sold NFTs without much notice until they boomed into the public consciousness in March 2021, hitting an inflection point when Christie’s, a world-leading art and luxury online auction business, made history with the monumental sale of artist Beeple’s Everydays: The First 5000 Days for $69.3 million. This monumental sale sparked an NFT craze by celebrities, creators, and athletes exploring ways to commercialize their brand, image, or content. Even former Twitter CEO Jack Dorsey sold his first-ever tweet for …

Mark My Words, This Is A Heavy Weight To Carry: The Eleventh Circuit Court Sets The Standard Weight Given To A Presumption Of Validity Of A Registered Mark, Dana Nagel

Mercer Law Review

The proof is in the pudding. Proving something by a preponderance of the evidence is a tough burden to bear. In any civil case, the party who bears the burden of proof is at a disadvantage from the beginning. Accordingly, courts take their time deciding which party has to ultimately persuade the court to find in its favor. While history has decided many questions about who bears the burden, the same is not true in trademark law. Courts have had immense difficulty determining which party, in trademark cases, loses if the evidence is balanced. This note examines a continuing split …

Death Of The Author: The Evolution And Expansion Of The Government Edicts Doctrine In Copyright Law, Elizabeth Selph

Mercer Law Review

Codification of the law is an expensive and time-consuming task that requires a certain level of skill and an ability for quick turnaround of product. Because of this, Congress and a majority of state legislatures hire companies, pursuant to their respective jurisdictions, with legal experts who organize legal information from a wide swath of sources into masterfully-constructed annotations brimming with helpful information to the reader. These annotations are so useful that the federal and state judiciary often employ them to understand statutes that are unclear or to define the scope of statutes. Moreover, these annotations, due to the nature of …

Intellectual Property, Laurence P. Colton

Mercer Law Review

This Article surveys legal developments in the area of intellectual property relevant to the United States Court of Appeals for the Eleventh Circuit during the 2013 calendar year, particularly as decided by the United States federal court system, because intellectual property law primarily is determined under federal law. The past year, 2013, was relatively unusual in that the United States Supreme Court ruled on several cases across the intellectual property spectrum, and the last remaining provisions of the federal America Invents Act (AIA) came into effect. Therefore, this year's Article is unique in that it focuses on law that not …

After Louboutin: Responding To Trademark Ownership Of Color In Creative Contexts, Monica Sullivan

Mercer Law Review

As an artist, it would be difficult to complete a work of art if you were limited to the use of certain colors, only those colors that no other artist had claimed. Imagine, for instance, that Monet, upon completion of his water lilies, is sued by Picasso for using a certain shade of blue. Picasso claims that the blue used by Monet is the same blue he uses to express melancholy. In fact, Picasso has used that blue throughout a number of his paintings, and it has become somewhat of a theme in his work. Should Picasso have ownership of …

Administering Mayo To Patents In Medicine And Biotechnology: Appropriate Dosage Or Risk Of Toxic Side Effects?, Lauren Miller

Mercer Law Review

In Mayo Collaborative Services v. Prometheus Laboratories, Inc., the United States Supreme Court considered whether it would uphold patents on the "bounty" arising from laws of nature, specifically, diagnostic tests based on natural laws that determined the efficacy and toxicity of certain thiopurine drugs. In a unanimous ruling, the Court invalidated the patents, which were held by respondent Prometheus Laboratories, Inc. (Prometheus). The Court ultimately concluded that the processes for which Prometheus claimed patents did not add "significantly more" to the underlying laws of nature, and thus did not warrant patent protection. The Mayo decision is likely to have …

Liberating The Library: Fair Use Mostly Upheld For University E-Reserves In Cambridge University Press V. Becker, Jennifer Findley

Mercer Law Review

Libraries and universities across the country had Georgia on their minds as they waited in anticipation for over a year for the outcome of a case. before the United States District Court for the Northern District of Georgia. On May 11, 2012, in Cambridge University Press v. Becker, Judge Orinda Evans answered a question of vital importance to librarians and university officials ever since the passage of the Copyright Act of 1976: does copyright infringement occur if a nonprofit institution makes copies for the classroom for a nonprofit educational purpose? In a 350-page opinion, the court answered with a …

Intellectual Property, Laurence Colton

Mercer Law Review

This Article surveys legal developments in the area of intellectual property relevant to the Eleventh Circuit during the 2011 calendar year. This year, the developments will be presented in a different manner. In recent years, national and state case law has been the primary driver of the developments. However, in 2011, the more interesting and more pertinent drivers have been statutory and practical in nature, both national and international, yet all equally pertinent to the practice of intellectual property law in the State of Georgia.

Intellectual property law comprises several discrete yet overlapping areas of law. The four primary areas …

Who Should Decide? Judges And Juries In Trademark Dilution Actions, Davis S. Welkowitz

Mercer Law Review

It has been sixteen years since a powerful form of federal trademark protection became available to a select group of trademark owners-those with "famous" trademarks. This relatively new protection, a form of infringement called trademark dilution, is the result of the Federal Trademark Dilution Act of 1995 (FTDA). This Act, which added a new section to the federal trademark statutes, was later amended by the Trademark Dilution Revision Act of 2006 (TDRA). These statutes have resulted in a plethora of court opinions, as litigants have eagerly sought to exploit the power of this statute. The major attraction of trademark dilution …

Intellectual Property, Laurence P. Colton, Kerri Hochgesang, Todd Williams, Dana T. Hustins

Mercer Law Review

This Article surveys caselaw developments in the area of intellectual property relevant to the Eleventh Circuit during the 2009 calendar year. Intellectual property law comprises several discrete yet overlapping areas of law. The four primary areas of intellectual property law are patent law, trademark law (including areas such as domain name law and "cybersquatting"), copyright law, and trade secret law. Because patent law and copyright law are provided for in the United States Constitution, cases in these areas are litigated exclusively in federal courts. Trademark law and trade secret law have both federal and state aspects, and the cases in …

Intellectual Property, Laurence P. Colton, Nigamnarayan Acharya, Todd Williams, Dana T. Hustins

Mercer Law Review

This Article surveys caselaw developments in the area of intellectual property, including patents, copyrights, and trademarks, relevant to Georgia during the period from January 1, 2007 to December 31, 2007. Intellectual property law comprises several discrete yet overlapping areas of law. The four primary areas of intellectual property law are patent law, trademark law, copyright law, and trade secret law. Because patent law and copyright law are provided for in the United States Constitution, these cases are based in federal law and are litigated in federal courts. Trademark law and trade secret law have both federal3 and state aspects, and …

Copyright Infringement Litigation And The Exercise Of Personal Jurisdiction Within Due Process Limits: Judicial Application Of Purposeful Availment, Purposeful Direction, Or Purposeful Effects Requirements To Finding That A Plaintiff Has Established A Defendant's Minimum Contacts Within The Forum State, Daniel E. Wanat

Mercer Law Review

An action for an infringement of a copyright secured under the United States Copyright Act may raise issues of copyright ownership, a defendant's access to a plaintiff's work, and substantial similarities between a plaintiff's work and a defendant's work. When raised, the issues bear on the merits of a plaintiff's copyright claim against a defendant.

Suppose, however, that a copyright owner brought suit in the forum state against a nonresident defendant. The defendant's first defense may be based on the state's lack of personal jurisdiction. This defense implicates issues under the forum state's law and the Due Process Clause of …

Intellectual Property, Laurence P. Colton, Nigamnarayan Acharya, John C. Bush

Mercer Law Review

This Article surveys case law developments relevant to Georgia in the area of intellectual property during the period from January 1, 2006 to December 31, 2006. Intellectual property law comprises several discrete yet overlapping areas of law. The four primary areas of intellectual property law are patent law, trademark law, copyright law, and trade secret law. Because patent law and copyright law are provided for in the United States Constitution, these decisions are based in federal law and are litigated in federal courts. Trademark law and trade secret law have both federal and state aspects, and the cases regarding these …

Federal Rule 50: Medium Rare Application? Unitherm Food Systems, Inc. V. Swift-Eckrich, Inc., Leslie Eanes

Mercer Law Review

The year 2006 marked a historical year for the now seventy-year-old Federal Rule of Civil Procedure 50. In addition to an overhaul of the statutory language, which, absent contrary congressional action, became codified December 1, 2006, the Supreme Court issued its landmark opinion in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. In what seems to be a straightforward procedural dictate from the High Court, Unitherm has actually resulted in confusion among federal circuits anxious to follow its precedent.

Illinois Tool Works Inc. V. Independent Ink, Inc.: The Intersection Of Patent Law And Antitrust Law In The Context Of Patent Tying Arrangements, Tiffany L. Williams

Mercer Law Review

It is increasingly common for businesses to sell products that are protected by a patent. But what happens when the company markets a bundle of products where some products are protected by patents, but others are not? Under well-settled antitrust jurisprudence, such marketing typically would raise antitrust concerns as a tying arrangement only where there are at least two separate products, the company has market power over one of the products, and the company requires that customers buy one or more additional products as part of a bundle.

In Illinois Tool Works Inc. v. Independent Ink, Inc., the United …

Merck Kgaa V. Integra Lifesciences I, Ltd.: Does The Breadth Of Safe Harbor Protection Toll The Death Knell For Biotech Research Companies?, Tiffany L. Williams

Mercer Law Review

In Merck KGaA v. Integra Lifesciences I, Ltd., the United States Supreme Court held that use of patented inventions during research where there was a reasonable basis for believing that the experiments would produce information relevant to Food and Drug Administration ("FDA") approval was protected from patent infringement lawsuits under 35 U.S.C. § 271(e)(1), commonly referred to as the "safe harbor" provision. This decision affirmed almost two decades of judicial decisions affording broad interpretation to the safe harbor provision and reversed the Federal Circuit's creation of a bright-line test limiting the scope of section 271(e)(1).

Intellectual Property, Laurence P. Colton, Nigamnarayan Acharya, Michael J. Bootcheck

Mercer Law Review

This Article surveys case law developments in the area of intellectual property, including patents, copyrights, and trademarks, relevant to Georgia during the period from January 1, 2004 to December 31, 2004. The authors have not attempted to include all cases that touch upon intellectual property, but instead have selected decisions that are of more significance or interest or that may indicate a particular direction in the areas of law. While the cited cases often have multiple issues, the authors have reported only on the more relevant or interesting issues.

Intellectual Property, Laurence P. Colton, Nigamnarayan Acharya

Mercer Law Review

This Article surveys case law developments in the area of intellectual property, including patents, copyrights, and trademarks, relevant to Georgia during the period from January 1, 2003 to December 31, 2003. The authors have not attempted to include all cases that touch upon intellectual property, but instead they have selected some decisions that are of more significance or interest or that indicate a particular direction the areas of law may take.

Intellectual property law comprises several discrete yet overlapping areas of law. The four primary areas are patent, trademark, copyright, and trade secret. Patent and copyright law are provided for …

As Congress Giveth, So Congress Taketh Away: The Supreme Court Assures Congressional Authority To Retroactively Extend Copyright Terms In Eldred V. Ashcroft, Darcy L. Jones

Mercer Law Review

In Eldred v. Ashcroft ("Eldred"), the "so-called 'Mickey Mouse case,'- the United States Supreme Court held that the Copyright Term Extension Act' ("CTEA") did not violate the First Amendment and that Congress did not exceed its power under the Copyright Clause when it enacted CTEA provisions enlarging terms for both future and previously published works with existing copyrights by twenty years. Thus the Court announced that it would defer to Congress in matters related to copyright legislation. While the case is a narrow, cautious decision that plows little new Constitutional ground, the Court clearly indicated it would find …

Save A Little Room For Me: The Necessity Of Naming As Inventors Practitioners Who Conceive Of Claimed Subject Matter, David Hricik, Alexandra Geczi, Zachary Thomas

Mercer Law Review

This Article addresses ethical and malpractice issues arising from the fact that attorneys who prosecute patents almost inevitably add to the inventor's original disclosure to the attorney. In the course of drafting a patent application-a process in which the attorney describes, necessarily in his own words, what the client has invented-the attorney will, at minimum, contribute ideas, thoughts, and means of expression that the client had not used. The application is not a verbatim transcript of an interview with the client; it is the creation of the patent lawyer. ...

However, under established law governing inventorship and derivation, seldom during …

Intellectual Property In Georgia, Laurence P. Colton, Nigam J. Acharya

Mercer Law Review

This Article surveys case law developments in Georgia in the area of intellectual property including patents, copyrights, and trademarks from June 1, 1999 to May 31, 2000. The authors have not attempted to include all cases that touch upon intellectual property but instead have selected decisions that are more significant or interesting.

Intellectual property law comprises several discrete yet overlapping areas of law. The three primary areas are patent, trademark, and copyright law. Secondary areas include trade secret, trade dress, and know-how. Patent and copyright law are provided for in the United States Constitution. Thus, the cases regarding these two …

Intellectual Property, Michael W. Rafter

Mercer Law Review

Previous issues of the Eleventh Circuit Survey have not included articles addressing developments in the Eleventh Circuit's intellectual property jurisprudence. But as the Internet and other forms of media make an ever-increasing amount of information available to anyone anywhere, intellectual property rights are becoming increasingly significant and valuable. Therefore, no better time exists than now to add an intellectual property article to the Survey. Accordingly, this Article examines several noteworthy cases involving intellectual property rights decided by the Eleventh Circuit during 1999.

The Heart Of The Matter: The Property Right Conferred By Copyright, Douglas Y'Barbo

Mercer Law Review

The purpose of this Article is to offer a single coherent model that explains copyright law's essential features and to apply the model to reconcile the apparently disparate infringement decisions that comprise contemporary copyright law.

The fundamental premise underlying copyright law-and the one that I intend to dislodge-is that a copyright is a limited property right in relation to the author's original text. The thesis of this Article is that a "copyright" is not an enforceable property right in relation to a particular work of authorship or the expression embodied in it (i.e., "a text"). Instead, I shall demonstrate that …

The Jurisdiction Of Trademark And Copyright Infringement On The Internet, James H. Aiken

Mercer Law Review

The unbounded territory known as cyberspace poses many jurisdictional questions. This Article presents and attempts to answer some of these questions as they relate to intellectual property ownership. The first section gives some background information on the Internet. The second section introduces some of the problems faced by owners of intellectual property who utilize the Internet. The third section discusses the jurisdictional questions posed by Internet infringment litigation. The fourth section discusses personal jurisdiction generally. A case study of existing cases dealing with Internet infringment follows and the Article concludes with a proposal for the most efficient and effective solution.

Markman V. Westview Instruments, Inc.: The Supreme Court Narrows The Jury's Role In Patent Litigation, Elizabeth J. Norman

Mercer Law Review

The number of patent cases tried to a jury has burgeoned in recent years. From 1968 to 1970, more than ninety-six percent of all patent trials were bench trials; in the fiscal year 1994, seventy percent of patent trials were tried to a jury. Because patent infringement actions begin with interpretation of the often highly technical and complex patent claim, the role of juries in patent litigation suits has become controversial. The general right to a jury trial in an infringement action has never been seriously questioned. However, this general right to a jury trial does not address the allocation …

Ortho Pharmaceutical Corp. V. Smith: Willful Infringement-Reliance On A Flawed Letter From Counsel, Brian David Bellamy

Mercer Law Review

In Ortho Pharmaceutical Corp. v. Smith, the Federal Circuit Court of Appeals held that an infringer's reliance on patent counsel's letter is justified if the "opinion [is] thorough enough, as combined with other factors, to instill a belief in the infringer that a court might reasonably hold the patent is invalid, not infringed, or unenforceable."' In crafting this decision, the court focused on the intent and the reasonable beliefs of the infringer. By relying on a letter from patent counsel, Ortho Pharmaceutical Corporation ("Ortho") had a reasonable basis for believing that it had not infringed the patent of American …

Intellectual Property, John C. Yates, Michael W. Mattox

Mercer Law Review

This Article is divided in the following sections: (1) Recent History of Intellectual Property Developments; (2) Trade Secrets; (3) Trademarks and Unfair Competition; (4) Restrictive Covenants and Employment Issues; (5) Copyright and Fine Art; (6) Computer Crime; and, (7) Future Trends. Driven by the explosive growth of technology, the protection of intellectual property in the 1990s will undoubtedly prove to be one of the most dynamic and controversial areas of the law. The state legislature and the United States Congress are considering numerous bills which will affect intellectual property. This area of the law, therefore, requires careful monitoring of legislative …

Trademark Protection: Judicial Inconsistency In The Fifth Circuit, Julius R. Lunsford Jr., William R. Cohrs

Mercer Law Review

Plaintiff-appellant has had the misfortune ... to come before a panel of this Court allergic to the doctrine historically associated with us because of its nurture by our most illustrious judges . . . of protecting trade names [trademarks] against competition which will create confusion as to the source of goods sold under such names. The chance of the assignment calendar which has so operated against plaintiff might as easily have brought it success, to judge by the three most recent cases on this issue before us, the unanimous decision in each instance. . . of another panel. ... This …