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Articles 1 - 30 of 87
Full-Text Articles in Law
Competition And Congestion In Trademark Law, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna
Competition And Congestion In Trademark Law, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna
Faculty Scholarship
Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this Article, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being …
Navigating The Identity Thicket: Trademark's Lost Theory Of Personality, The Right Of Publicity, And Preemption, Jennifer E. Rothman
Navigating The Identity Thicket: Trademark's Lost Theory Of Personality, The Right Of Publicity, And Preemption, Jennifer E. Rothman
All Faculty Scholarship
Both trademark and unfair competition laws and state right of publicity laws protect against unauthorized uses of a person’s identity. Increasingly, however, these rights are working at odds with one another, and can point in different directions with regard to who controls a person’s name, likeness, and broader indicia of identity. This creates what I call an "identity thicket" of overlapping and conflicting rights over a person’s identity. Current jurisprudence provides little to no guidance on the most basic questions surrounding this thicket, such as what right to use a person’s identity, if any, flows from the transfer of marks …
Edward S. Rogers, The Lanham Act, And The Common Law, Jessica Litman
Edward S. Rogers, The Lanham Act, And The Common Law, Jessica Litman
Book Chapters
This book chapter is a deep dive into the story of Edward Sidney Rogers's authorship of the legislation that became the Lanham Act. Because Rogers believed that Congress lacked the power to alter the substantive law of trademark and unfair competition, he crafted draft legislation that focused on registration and other procedural details rather than substantive rights and defenses. He sought to advance two incompatible goals: he hoped to preserve the robust common law of unfair competition while requiring, or at least encouraging, all trademark owners to register their marks. Both the supporters and the opponents of the bills that …
The Lost Unfair Competition Law, Christine Farley
The Lost Unfair Competition Law, Christine Farley
Articles in Law Reviews & Other Academic Journals
The accepted metaphor that trademark law is a species of the genus of unfair competition law distorts both the actual history and the relationship between the two. Tracing the development of the law reveals a related sequence of significant events, some of which have been forgotten. This back-story suggests that a particularly innovative treaty incorporated by reference into the Lanham Act was meant to be the vehicle for unfair competition protection. As a result of this lost law, unfair competition law remains an enigma today.
Valuing The Freedom Of Speech And The Freedom To Compete In Defenses To Trademark And Related Claims In The United States, Jennifer E. Rothman
Valuing The Freedom Of Speech And The Freedom To Compete In Defenses To Trademark And Related Claims In The United States, Jennifer E. Rothman
All Faculty Scholarship
This book chapter appears in the CAMBRIDGE HANDBOOK ON INTERNATIONAL AND COMPARATIVE TRADEMARK LAW, edited by Jane C. Ginsburg & Irene Calboli (Cambridge Univ. Press 2020). The Chapter provides an overview of the defenses to trademark infringement, dilution, and false endorsement claims that serve the goals of free expression and fair competition. In particular, the Chapter covers the defenses of genericism, functionality, descriptive and nominative fair use, the Rogers test, statutory exemptions to dilution claims, and the questions of whether and how an independent First Amendment defense applies in light of recent Supreme Court decisions.
In addition to providing a …
Property And Equity In Trademark Law, Mark Mckenna
Property And Equity In Trademark Law, Mark Mckenna
Journal Articles
This essay, delivered as the Nies Lecture at Marquette Law School, focuses on changes in the doctrinal structure of trademark law over the course of the last century — specifically with respect to the relationship between trademark law’s limits and the broader common law of unfair competition. Changes in that relationship, I will argue, meaningfully increased trademark law's emphasis on property — what the plaintiff owns — and deemphasized legal rules that focused on the defendant’s conduct.
Non-Traditional Trademarks: The Error Costs Of Making An Exception The Rule, Glynn Lunney
Non-Traditional Trademarks: The Error Costs Of Making An Exception The Rule, Glynn Lunney
Faculty Scholarship
Over the last sixty years, courts and the USPTO have engaged in an ill-advised expansion of trademark subject matter. Where once only words or emblems attached to a product could serve as a trademark, today a product’s design or packaging itself may receive such protection. This expansion was and is a mistake. There may indeed be rare cases where a product’s design or packaging conveys brand-specific information and could receive protection without impairing competitor’s ability to offer substitutes. Such cases are the exception and not the rule, however. Extending the strong legal presumptions and property-like protection trademark law provides to …
The Dtsa At One: An Empirical Study Of The First Year Of Litigation Under The Defend Trade Secrets Act, David S. Levine, Christopher B. Seaman
The Dtsa At One: An Empirical Study Of The First Year Of Litigation Under The Defend Trade Secrets Act, David S. Levine, Christopher B. Seaman
Scholarly Articles
This article represents the first comprehensive empirical study of the Defend Trade Secrets Act (“DTSA”), the law enacted by Congress in 2016 that created a federal civil cause of action for trade secret misappropriation. The DTSA represents the most significant expansion of federal involvement in intellectual property law in at least 30 years. In this study, we examine publicly-available docket information and pleadings to assess how private litigants have been utilizing the DTSA. Based upon an original dataset of nearly 500 newly-filed DTSA cases in federal court, we analyze whether the law is beginning to meet its sponsors’ stated goals …
The Erie/Sears/Compco Squeeze: Erie’S Effects On Unfair Competition And Trade Secret Law, Sharon Sandeen
The Erie/Sears/Compco Squeeze: Erie’S Effects On Unfair Competition And Trade Secret Law, Sharon Sandeen
Faculty Scholarship
On the occasion of the 80th anniversary of the Supreme Court's famous decision in Erie Railroad v. Tompkins, this article explores the consequences of that decision on the development of unfair competition law in the United States. It details efforts by lawyers and legislators to grapple with those consequences and provides an overview of the evolution of unfair competition law in the U.S. since Erie, with a particular focus on trade secret law.
The Significance Of The Data Exclusivity And Its Impact On Generic Drugs, Srividhya Ragavan
The Significance Of The Data Exclusivity And Its Impact On Generic Drugs, Srividhya Ragavan
Srividhya Ragavan
The following is a law review interview with Professor Srividhya Ragavan on the issues in interpretation of data exclusivity provisions under the TRIPS Agreement, and the impact of data exclusivity on generic drugs.
The Significance Of The Data Exclusivity And Its Impact On Generic Drugs, Srividhya Ragavan
The Significance Of The Data Exclusivity And Its Impact On Generic Drugs, Srividhya Ragavan
Faculty Scholarship
The following is a law review interview with Professor Srividhya Ragavan on the issues in interpretation of data exclusivity provisions under the TRIPS Agreement, and the impact of data exclusivity on generic drugs.
Trademarks: German Manufacturer’S Deliberate Infringement Of Domestic Trademark Sufficient To Support Injunctive Relief, But Not Supportive Of Award For Damages, Kimley R. Johnson
Trademarks: German Manufacturer’S Deliberate Infringement Of Domestic Trademark Sufficient To Support Injunctive Relief, But Not Supportive Of Award For Damages, Kimley R. Johnson
Georgia Journal of International & Comparative Law
No abstract provided.
Infringicus Maximus! An Exploration Of Motion Picture Title Protection In An International Film Industry Through The Legal Battles Of Harry Potter, Emily Kathryn Tyler
Infringicus Maximus! An Exploration Of Motion Picture Title Protection In An International Film Industry Through The Legal Battles Of Harry Potter, Emily Kathryn Tyler
Journal of Intellectual Property Law
No abstract provided.
United States Response To Questionnaire Concerning Applied Arts Under Ip Law: The Uncertain Border Between Beauty And Usefulness, June M. Besek, Robert E. Bishop, Jane C. Ginsburg, Philippa Loengard, Nathalie Russell
United States Response To Questionnaire Concerning Applied Arts Under Ip Law: The Uncertain Border Between Beauty And Usefulness, June M. Besek, Robert E. Bishop, Jane C. Ginsburg, Philippa Loengard, Nathalie Russell
Faculty Scholarship
ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.
Making Sense Of Georgia's State Law Protections For Trademarks And Trade Secrets, Elizabeth R. Calhoun
Making Sense Of Georgia's State Law Protections For Trademarks And Trade Secrets, Elizabeth R. Calhoun
Journal of Intellectual Property Law
No abstract provided.
Toward More Universal Protection Of Intangible Cultural Property, Cathryn A. Berryman
Toward More Universal Protection Of Intangible Cultural Property, Cathryn A. Berryman
Journal of Intellectual Property Law
No abstract provided.
Dilution, An Idea Whose Time Has Gone; Brand Equity As Protectable Property, The New/Old Paradigm, Jerre B. Swann, Theodore H. Davis Jr.
Dilution, An Idea Whose Time Has Gone; Brand Equity As Protectable Property, The New/Old Paradigm, Jerre B. Swann, Theodore H. Davis Jr.
Journal of Intellectual Property Law
No abstract provided.
Crossing The Line: The Collegiate Licensing Company's Overindulgent Attempt To Limit Small Businesses' Online Marketing Techniques Based On Frivolous Claims Of Trademark Infringement, Lauren T. Warbington
Crossing The Line: The Collegiate Licensing Company's Overindulgent Attempt To Limit Small Businesses' Online Marketing Techniques Based On Frivolous Claims Of Trademark Infringement, Lauren T. Warbington
Journal of Intellectual Property Law
No abstract provided.
Passing The Virtual Buck: How The Ninth Circuit Used Contributory Trademark Law To Expand Liability For Web Hosts, Alessandra Backus
Passing The Virtual Buck: How The Ninth Circuit Used Contributory Trademark Law To Expand Liability For Web Hosts, Alessandra Backus
Journal of Intellectual Property Law
No abstract provided.
Copy Game For High Score: The First Video Game Lawsuit, William K. Ford
Copy Game For High Score: The First Video Game Lawsuit, William K. Ford
Journal of Intellectual Property Law
No abstract provided.
Dtsa: A Federal Tort Of Unfair Competition In Aerial Reconnaissance, Broken Deals, And Employment, Stephen Y. Chow
Dtsa: A Federal Tort Of Unfair Competition In Aerial Reconnaissance, Broken Deals, And Employment, Stephen Y. Chow
Washington and Lee Law Review Online
This Essay critiques the creation by the 114th Congress of a federal private right of action under the Defend Trade Secrets Act for the state unfair competition cause of trade secret misappropriation hitherto applied mostly to breaches of express or implied confidential relationships between businesses or with employees. The proposed insertion of the Uniform Trade Secrets Act definition of “misappropriation,” including acquisition by “improper means” exemplified by state commercial mores’ expectation of privacy from aerial reconnaissance, into the Economic Espionage Act framework of theft of a more narrowly defined “trade secret” of a defined “owner,” including such actions abroad by …
By Any Other Name: Image Advertising And The Commercial Speech Doctrine In Jordan V. Jewel, Kelly Miller
By Any Other Name: Image Advertising And The Commercial Speech Doctrine In Jordan V. Jewel, Kelly Miller
Loyola of Los Angeles Entertainment Law Review
This Comment focuses on the commercial speech doctrine as applied to modern advertising strategies, specifically, corporate image advertising. It centers on the recent litigation between basketball superstar Michael Jordan and a Chicago-area grocery chain, Jewel-Osco. When Michael Jordan was inducted into the Basketball Hall of Fame, Jewel-Osco was invited to submit a congratulatory ad for a commemorative issue of Sports Illustrated devoted exclusively to Jordan’s career and accomplishments. Because Jordan had spent the bulk of his storied professional basketball career with the Chicago Bulls, the ad seemed a natural fit. Jordan, who did not give permission for his name to …
Comment: The Tiger Woods Case - Has The Sixth Circuit Abandoned Trademark Law? Etw Corp. V. Jireh Publishing, Inc., Joseph R. Dreitler
Comment: The Tiger Woods Case - Has The Sixth Circuit Abandoned Trademark Law? Etw Corp. V. Jireh Publishing, Inc., Joseph R. Dreitler
Akron Law Review
For more than fifty years, the United States Court of Appeals for the Sixth Circuit vigilantly protected the intellectual property rights of trademark owners and persons seeking protection of their privacy and rights of publicity. Less than two years ago, that changed. In a turnaround remarkable for its suddenness and completeness, the court veered away from protecting intellectual property rights. Perhaps the reason for the departure lies in the stinging reversals of two of its decisions by the United States Supreme Court, or perhaps it lies in a string of admittedly questionable cases brought by overreaching plaintiffs. Regardless of the …
International Copyright: Domestic Barriers To United States Participation In The Rome Convention On Neighboring Rights, Eric T. Johnson
International Copyright: Domestic Barriers To United States Participation In The Rome Convention On Neighboring Rights, Eric T. Johnson
Georgia Journal of International & Comparative Law
No abstract provided.
Trade-Marks And Unfair Competition Law In Canada: Cases And Commentary, Second Edition, Bita Amani, Carys Craig
Trade-Marks And Unfair Competition Law In Canada: Cases And Commentary, Second Edition, Bita Amani, Carys Craig
Carys Craig
The legal protection afforded by statutory and common law to brands, logos, and "source-identifiers" in the marketplace is a significant and growing area of concern. Trade-marks are often among a business's most valuable assets, making trade-mark law a vital component of any corporate or commercial practice. The Amani-Craig collaboration produces a timely and current volume that comprehensively covers the law and jurisprudence on trade-mark protection in Canada, providing background and comparative discussion where relevant, and offering insightful commentary to facilitate reader comprehension.
Trade-Marks And Unfair Competition Law In Canada: Cases And Commentary, Bita Amani, Carys Craig
Trade-Marks And Unfair Competition Law In Canada: Cases And Commentary, Bita Amani, Carys Craig
Carys Craig
This text offers a thorough and accessible survey of the Canadian law of trade-marks and unfair competition. The legal protection afforded by statutory and common law to brands, logos, and "source-identifiers" in the marketplace is a significant and growing area of concern. Trade-marks are often among a business's most valuable assets, making trade-mark law a vital component of any corporate or commercial practice. The Amani-Craig collaboration produces a timely and current volume that comprehensively covers the law and jurisprudence on trade-mark protection in Canada, providing background and comparative discussion where relevant, and offering insightful commentary to facilitate reader comprehension.
In Personam And Beyond The Grasp: In Search Of Jurisdiction And Accountability For Foreign Defendants, Andrew F. Popper
In Personam And Beyond The Grasp: In Search Of Jurisdiction And Accountability For Foreign Defendants, Andrew F. Popper
Catholic University Law Review
No abstract provided.
The Protection Of Geographical Indications In The Inter-American Convention, Christine Farley
The Protection Of Geographical Indications In The Inter-American Convention, Christine Farley
Articles in Law Reviews & Other Academic Journals
The international community is currently deeply divided over the appropriate level of protection for Geographical Indications (“GIs”). This conflict has recently come to a head in the negotiations over the Transatlantic Trade and Investment Partnership Agreement (TTIP). GIs receive extensive protections within the European Union (EU) that go beyond international standards, while the United States is generally opposed to strengthening existing international GI protections.Given its current stance, it is remarkable that the US has since 1929 been bound by a little known international convention that ensures strong protection of GIs. Since that date, the US has been a member of …
The Protection Of Geographical Indications In The Inter-American Convention, Christine Haight Farley
The Protection Of Geographical Indications In The Inter-American Convention, Christine Haight Farley
Articles in Law Reviews & Other Academic Journals
The international community is currently deeply divided over the appropriate level of protection for Geographical Indications (“GIs”). This conflict has recently come to a head in the negotiations over the Transatlantic Trade and Investment Partnership Agreement (TTIP). GIs receive extensive protections within the European Union (EU) that go beyond international standards, while the United States is generally opposed to strengthening existing international GI protections.
Given its current stance, it is remarkable that the US has since 1929 been bound by a little known international convention that ensures strong protection of GIs. Since that date, the US has been a member …
In Tort Pursuit Of Mass Media: Big Tobacco, Big Banks, And Their Big Secrets, Richard J. Peltz-Steele, Eric J. Booth
In Tort Pursuit Of Mass Media: Big Tobacco, Big Banks, And Their Big Secrets, Richard J. Peltz-Steele, Eric J. Booth
Faculty Publications
This article examines potential civil liability under the multistate norms of tort and closely related areas in the common law of the United States for the mass media re-publisher of leaked corporate secrets. The examination employs two fact patterns derived from real cases: one, contemporary, an international bank's grievance, never resolved on the merits in court, against the online publisher WikiLeaks; and second, conventional, a tobacco manufacturer's grievance, feared but never filed, against the television newsmagazine 60 Minutes. The study assumes jurisdiction arguendo and examines liability theories in tortious interference; unfair-competition law; and conversion, trade-secret appropriation, and related theories of …