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Articles 1 - 18 of 18
Full-Text Articles in Law
Raising The Threshold For Trademark Infringement Protect Free Expression, Christine Haight Farley, Lisa P. Ramsey
Raising The Threshold For Trademark Infringement Protect Free Expression, Christine Haight Farley, Lisa P. Ramsey
Articles in Law Reviews & Other Academic Journals
The First Amendment right to free speech limits the scope of rights in trademark law. Congress and the courts have devised various defenses and common law doctrines to ensure that protected speech is exempted from trademark infringement liability. These defensive trademark doctrines, however, are narrow and often vary by jurisdiction. One current example is the speech-protective test first articulated by the Second Circuit in Rogers v. Grimaldi, expanded by the Ninth Circuit, and recently restricted by the Supreme Court in Jack Daniel’s Properties v. VIP Products to uses of another’s mark within an expressive work that do not designate the …
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.
Public Policy Limitations On Trademark Subject Matter: A U.S. Perspective, Christine Farley
Public Policy Limitations On Trademark Subject Matter: A U.S. Perspective, Christine Farley
Contributions to Books
This chapter provides an overview of the public policy limitations on trademark subject matter under U.S. law. This is an area of law that had been fairly stable until recently. The U.S. Supreme Court’s 2017 decision striking down the prohibition on registering disparaging marks and its 2019 decision striking down the prohibition on registering immoral and scandalous marks may prompt a larger reexamination of the policy justifications for denying trademark registration.
Makeup Dupes And Fair Use, Samantha Primeaux
Makeup Dupes And Fair Use, Samantha Primeaux
American University Law Review
No abstract provided.
No Trademark, No Problem, Christine Farley
No Trademark, No Problem, Christine Farley
Articles in Law Reviews & Other Academic Journals
Does the Lanham Act permit a foreign business that has neither used nor registered its trademark in the United States to sue the owner of a U.S. trademark for its use of the same mark in the U.S.? A recent case from the Court of Appeals for the Fourth Circuit addressed this consequential question. In Belmora, LLC.v. Bayer Consumer Care A G, the Court of Appeals surprised the legal community and answered this question in the affirmative, reversing the district court's decision to reject the trademark claim because it was unsupported by a federally protected U.S. trademark.The Belmora decision has …
No Trademark, No Problem, Christine Haight Farley
No Trademark, No Problem, Christine Haight Farley
Articles in Law Reviews & Other Academic Journals
Does the Lanham Act permit a foreign business that has neither used nor registered its trademark in the United States to sue the owner of a U.S. trademark for its use of the same mark in the U.S.? A recent case from the Court of Appeals for the Fourth Circuit addressed this consequential question. In Belmora, LLC.v. Bayer Consumer Care A G, the Court of Appeals surprised the legal community and answered this question in the affirmative, reversing the district court's decision to reject the trademark claim because it was unsupported by a federally protected U.S. trademark.
The Belmora decision …
Supreme Court Amicus Brief Of Law Professors In Support Of Petitioner Lee V. Tam, No. 15-1293 (Filed Nov. 16, 2016), Christine Farley, Rebecca Tushnet
Supreme Court Amicus Brief Of Law Professors In Support Of Petitioner Lee V. Tam, No. 15-1293 (Filed Nov. 16, 2016), Christine Farley, Rebecca Tushnet
Articles in Law Reviews & Other Academic Journals
The Federal Circuit’s ruling that the § 2(a) disparagement provision is unconstitutional, if upheld, could allow for numerous provisions of the Trademark Act to be overturned, dismantling the modern trademark system. The trademark system is premised on evaluating speech and making content-based determinations. Granting a trademark registration requires content-based determinations, though not viewpoint-based, as words are evaluated independent of applicants’ individual viewpoints.In no way does the refusal to register a trademark prevent its use or diminish public debate. Rather than facilitating public debate, a trademark registration is a government-issued document that makes it easier for its owner to suppress the …
Registering Offense: The Prohibition Of Slurs As Trademarks, Christine Farley
Registering Offense: The Prohibition Of Slurs As Trademarks, Christine Farley
Contributions to Books
Since 1967, Pro-Football has registered six marks that include the term “redskins,” a derogatory racial epithet that refers to Native Americans. The use of disparaging marks dates back to the 19th century when brands commercialized racial stereotypes, such as Aunt Jemima. Today, offensive marks, including those that ridicule race, ethnicity, gender and religion are proliferating prompting the question of what role trademark law plays in protecting the interests of diverse communities. Section 2(a) of the Lanham Act prohibits the registration of marks that consist of matter that may disparage or bring into contempt or disrepute any person, institution, or belief. …
Stabilizing Morality In Trademark Law, Christine Haight Farley
Stabilizing Morality In Trademark Law, Christine Haight Farley
Articles in Law Reviews & Other Academic Journals
Almost all of the commentary concerning the statutory prohibition on registering offensive trademarks lambasts it as a misguided attempt to enforce civility through trademark law. This Article carefully considers the challenges accompanying section 2(a) of the U.S. Trademark Act and defends it as good policy. There are, however, a few instances in which the jurisprudence under section 2(a) has created more problems than it has solved. To alleviate these problems, this Article proposes judging words per se and abandoning the traditional trademark notion of evaluating words in context. Judging words per se is warranted given the very different objectives underlying …
Stabilizing Morality In Trademark Law, Christine Farley
Stabilizing Morality In Trademark Law, Christine Farley
Articles in Law Reviews & Other Academic Journals
Almost all of the commentary concerning the statutory prohibition on registering offensive trademarks lambasts it as a misguided attempt to enforce civility through trademark law. This Article carefully considers the challenges accompanying section 2(a) of the U.S. Trademark Act and defends it as good policy. There are, however, a few instances in which the jurisprudence under section 2(a) has created more problems than it has solved. To alleviate these problems, this Article proposes judging words per se and abandoning the traditional trademark notion of evaluating words in context. Judging words per se is warranted given the very different objectives underlying …
2008 Trademark Decisions Of The Federal Circuit A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit: Area Summaries , David M. Kelly, Stephanie H. Bald
2008 Trademark Decisions Of The Federal Circuit A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit: Area Summaries , David M. Kelly, Stephanie H. Bald
American University Law Review
In 2008, the United States Court of Appeals for the Federal Circuit issued eight trademark decisions and designated one of those eight decisions as precedential. These numbers are significantly lower than in recent years. The cases consist of appeals from the Trademark Trial and Appeal Board (“TTAB”), the United States Court of International Trade, and the United States Court of Federal Claims. Of the eight trademark decisions, four focused on substantive issues and four primarily involved procedural issues. The Federal Circuit generally adopted the findings of the lower tribunals, affirming all but one of the eight decisions on appeal. The …
Big Boi, Dr. Seuss, And The King: Expanding The Constitutional Protections For The Satirical Use Of Famous Trademarks , Aaron Jaroff
Big Boi, Dr. Seuss, And The King: Expanding The Constitutional Protections For The Satirical Use Of Famous Trademarks , Aaron Jaroff
American University Law Review
No abstract provided.
Intellectual Property At The Intersection Of Race And Gender: Lady Sings The Blues, K.J. Greene
Intellectual Property At The Intersection Of Race And Gender: Lady Sings The Blues, K.J. Greene
American University Journal of Gender, Social Policy & the Law
No abstract provided.
Review Of The 2006 Trademark Decisions Of The Federal Circuit, Christine Haight Farley, Geri L. Haight
Review Of The 2006 Trademark Decisions Of The Federal Circuit, Christine Haight Farley, Geri L. Haight
Articles in Law Reviews & Other Academic Journals
The United States Court of Appeals for the Federal Circuit delivered only seven precedential trademark opinions in 2006. The Court addressed a range of substantive issues including trade dress configuration, reverse passing off, and genericism. Notably, two of the seven precedential decisions involved plant names protected by the Plant Variety Protection Act. The Court decided only one case in 2006 where the primary issue was procedural, rather than substantive. In that case, the Court sided with the Trademark Trial and Appeal Board and affirmed its decision on the applicability of the res judicata doctrine. In 2006, as in previous years, …
2001 Federal Circuit Trademark Roundup , Andrew Hartman, Lisa K. Koenig
2001 Federal Circuit Trademark Roundup , Andrew Hartman, Lisa K. Koenig
American University Law Review
No abstract provided.
Conflicts Between U.S. Law And International Treaties Concerning Geographical Indications, Christine Farley
Conflicts Between U.S. Law And International Treaties Concerning Geographical Indications, Christine Farley
Articles in Law Reviews & Other Academic Journals
It should not be surprising that the United States is not a major proponent of the protection of geographical indications. Countries that stand to benefit the most from this protection are those that have a long history of traditional industries, such as many European countries. These historical differences may help explain the stance that the United States has taken with regard to the protection of geographical indications, as compared to its stance towards other intellectual property rights negotiated in TRIPs Agreement. But the inability of the U.S. to benefit to the same extent as European countries, because of its apparent …
1997 Survey Of Trademark Decisions By The Court Of Appeals For The Federal Circuit , Julia Anne Matheson, Douglas A. Rettew
1997 Survey Of Trademark Decisions By The Court Of Appeals For The Federal Circuit , Julia Anne Matheson, Douglas A. Rettew
American University Law Review
No abstract provided.
The Challenge Ahead: Increasing Predictability In Federal Circuit Jurisprudence For The New Century, Paul R. Michel
The Challenge Ahead: Increasing Predictability In Federal Circuit Jurisprudence For The New Century, Paul R. Michel
American University Law Review
No abstract provided.