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Full-Text Articles in Law

Candidates Shouldn’T “Cruz” Through Political Campaigns: Why Asking For Permission To Use Music Is Becoming So Important On The Campaign Trail, 16 J. Marshall Rev. Intell. Prop. L. 457 (2017), Courtney Willits Jan 2017

Candidates Shouldn’T “Cruz” Through Political Campaigns: Why Asking For Permission To Use Music Is Becoming So Important On The Campaign Trail, 16 J. Marshall Rev. Intell. Prop. L. 457 (2017), Courtney Willits

The John Marshall Review of Intellectual Property Law

Music has always been used by candidates running for political office as a way to advertise themselves to potential voters. Throughout the years, a battle between political candidates and musicians has grown due to problems caused by music licensing. Currently, an issue in law exists between politicians who obtain proper music licenses versus musicians who have a right of publicity, stating they do not want to be associated with certain candidates' political views. This comment analyzes the recent copyright case against former 2016 presidential candidate Ted Cruz, and the role it could play in this area of law. Additionally, this ...


The Courts' Interpretations Of Legitimate Business Purposes, With Applications To Lexmark, 16 J. Marshall Rev. Intell. Prop. L. 411 (2017), W. Lesser Jan 2017

The Courts' Interpretations Of Legitimate Business Purposes, With Applications To Lexmark, 16 J. Marshall Rev. Intell. Prop. L. 411 (2017), W. Lesser

The John Marshall Review of Intellectual Property Law

Courts frequently must assess 'intent'. This article applies to the interpretation the intent of "legitimate business purposes" as a justification for restrictive use licensing agreements for patented products. Generally, the 'first sale' doctrine terminates the use rights of the patent holder. However, if the sale is conditioned on some use limitations and violators of those terms are liable for infringement. The courts, suggested in Mitchell v. Hawley (1872) and formalized in Mallinckrodt v. Medipart (1992), have allowed use restrictions based on license terms. Restrictions are disallowed under the affirmative defense of patent invalidity, such as from an antitrust violation. This ...


It’S My Mark, I Can Offend If I Want To! The Waning Of The Government’S Power To Protect Its Citizens From Widespread Discriminatory Marks, 16 J. Marshall Rev. Intell. Prop. L. 505 (2017), Paul Sanders Jan 2017

It’S My Mark, I Can Offend If I Want To! The Waning Of The Government’S Power To Protect Its Citizens From Widespread Discriminatory Marks, 16 J. Marshall Rev. Intell. Prop. L. 505 (2017), Paul Sanders

The John Marshall Review of Intellectual Property Law

There is an inherent tension between the First Amendment and trademark law. For over 100 years the United States Patent and Trademark Office has protected American citizens from Marks of ill repute. In the wake of the In re Tam decision, this may become more difficult if not impossible. This comment analyzes In re Tam, as well as explores the First Amendment guarantee of free speech and trademark law, and how each intersects with each other. Additionally, this comment proposes solutions that will allow the government to continue protecting its citizens from Marks that should have no place in commerce.


Impact Of Lexmark Case On Patent Exhaustion, 16 J. Marshall Rev. Intell. Prop. L. 487 (2017), Gouthami Vanam Jan 2017

Impact Of Lexmark Case On Patent Exhaustion, 16 J. Marshall Rev. Intell. Prop. L. 487 (2017), Gouthami Vanam

The John Marshall Review of Intellectual Property Law

In recent times, there exists a lot of confusion as to the patent exhaustion doctrine and its implications on conditional sales and international patent exhaustion. Current patent exhaustion laws do not allow for international patent exhaustion, whereas current copyright exhaustion laws favor removal of geographical boundaries and facilitate commerce. This comment examines the evolution of the patent exhaustion doctrine and compares the Lexmark Int l, Inc. v. Impression Prods. case to Kirtsaeng v. John Wiley & Sons, Inc. and proposes solution in favor of international patent exhaustion.


Conceptual Expression In A Copyright World: Protecting Ideas From The Shadow Of Preemption: A Call For Legislative Action, 17 J. Marshall Rev. Intell. Prop. L. 1 (2017), John R. Kettle Iii Jan 2017

Conceptual Expression In A Copyright World: Protecting Ideas From The Shadow Of Preemption: A Call For Legislative Action, 17 J. Marshall Rev. Intell. Prop. L. 1 (2017), John R. Kettle Iii

The John Marshall Review of Intellectual Property Law

The notion that an idea creator ought to be compensated for the product of his or her mind continues to transcend and develop in the realm of intellectual property. Although many scholars have penned that there is a value to conceptual expression in the disclosure of the idea apart from its future expression, there are others that blur the idea/expression dichotomy and take the position that ideas should be as free as air. Many academics tend to reject the traditional theories of protection, and proscribe alternatives in providing protection to conceptual expression, my article adds to and critiques the ...


Putting Yourself In The Shoes Of A Patent Examiner: Overview Of The United States Patent And Trademark Office (Uspto) Patent Examiner Production (Count) System, 17 J. Marshall Rev. Intell. Prop. L. 32 (2017), Naira Rezende Simmons Jan 2017

Putting Yourself In The Shoes Of A Patent Examiner: Overview Of The United States Patent And Trademark Office (Uspto) Patent Examiner Production (Count) System, 17 J. Marshall Rev. Intell. Prop. L. 32 (2017), Naira Rezende Simmons

The John Marshall Review of Intellectual Property Law

The mission of the United States Patent and Trademark Office (USPTO) is to ensure that the Intellectual Property system contributes to a strong global economy, encourages investment in innovation, and fosters entrepreneurial spirit. In order to ensure that the large volume of newly filed patent applications are examined in a reasonable timeframe, the USPTO has a system for determining the average amount of time an examiner should spend examining a patent application. Under the current production system, productivity is assessed based on Production Units (“PUs”) achieved relative to the Examiner’s production goal. The production goal is calculated for each ...


The Global Protection Of Traditional Knowledge: Searching For The Minimum Consensus, 17 J. Marshall Rev. Intell. Prop. L. 42 (2017), Aman Gebru Jan 2017

The Global Protection Of Traditional Knowledge: Searching For The Minimum Consensus, 17 J. Marshall Rev. Intell. Prop. L. 42 (2017), Aman Gebru

The John Marshall Review of Intellectual Property Law

The protection of traditional knowledge (TK) – the know-how, skills, innovations and practices of indigenous peoples and local communities has been a subject of heated debate in many international forums. TK has proved to be useful as an input in modern industries. For instance, pharmaceutical companies have used medicinal TK to develop drugs more quickly. Despite its value, TK faces an alarming rate of loss and there are many initiatives that attempt to preserve it for posterity. However, almost every major issue on TK protection is contentious, including whether international TK protection is necessary or if domestic legislation alone would suffice ...


Living To See His Glory Days: Why Hamilton's Lin Manuel Miranda Is Not Liable For Copyright Infringement, But Other Writers And Composers Are, 17 J. Marshall Rev. Intell. Prop. L. 92 (2017), Deidre Davis Jan 2017

Living To See His Glory Days: Why Hamilton's Lin Manuel Miranda Is Not Liable For Copyright Infringement, But Other Writers And Composers Are, 17 J. Marshall Rev. Intell. Prop. L. 92 (2017), Deidre Davis

The John Marshall Review of Intellectual Property Law

This comment discusses the idea of individuals receiving preliminary permissions of copyrighted works before using the work as a component of their own. By doing so, an individual has a better opportunity to avoid copyright infringement. Lin Manuel Miranda, the writer of the musical Hamilton, took preliminary measures to avoid copyright infringement, and these measures will be examined throughout this comment. Copyright infringement cases and other infringement cases will be addressed, as well as a proposal to simplify obtaining preliminary permissions in copyrighted works.


Trying On Trade Dress: Using Trade Dress To Protect The Look And Feel Of Video Games, 17 J. Marshall Rev. Intell. Prop. L. 109 (2017), Benjamin Lockyer Jan 2017

Trying On Trade Dress: Using Trade Dress To Protect The Look And Feel Of Video Games, 17 J. Marshall Rev. Intell. Prop. L. 109 (2017), Benjamin Lockyer

The John Marshall Review of Intellectual Property Law

With the creation of video games for smart phones, video games are some of the most accessible forms of entertainment on the market. What was once only an attraction inside the designated location of arcade halls, is now within the grip of nearly every smart phone user. With new game apps for smart phones going viral on a regular basis, the video game industry has become one of the most profitable in the entertainment realm. However, the industry's overall success has also led to increased competition amongst game developers. As a result, competing developers create near exact copies of ...


If It's In The Game: Is There Liability For User-Generated Characters' Likeness?, 16 J. Marshall Rev. Intell. Prop. L. 291 (2017), Jason Zenor Jan 2017

If It's In The Game: Is There Liability For User-Generated Characters' Likeness?, 16 J. Marshall Rev. Intell. Prop. L. 291 (2017), Jason Zenor

The John Marshall Review of Intellectual Property Law

In cases like Keller and No Doubt v. Activision, the federal courts held that the use of celebrity's likeness was a violation of the right of publicity. In response, EA Sports suspended production of college sports games. But most games still allow for gamers to create their own avatars. With game systems now being connected, gamers can download user-created content many of which will have the likeness of famous people, thus circumventing the holdings in Keller and No Doubt. Accordingly, this article examines how this type of user generated content fits within the law of appropriation. First, this article ...


Gotta Catch . . . A Lawsuit? A Legal Insight Into The Intellectual, Civil, And Criminal Battlefield Pokémon Go Has Downloaded Onto Smartphones And Properties Around The World, 16 J. Marshall Rev. Intell. Prop. L. 329 (2017), Andrew Rossow Jan 2017

Gotta Catch . . . A Lawsuit? A Legal Insight Into The Intellectual, Civil, And Criminal Battlefield Pokémon Go Has Downloaded Onto Smartphones And Properties Around The World, 16 J. Marshall Rev. Intell. Prop. L. 329 (2017), Andrew Rossow

The John Marshall Review of Intellectual Property Law

Our society, and its millennials, have entered the digital age, whereby almost everything is conducted and perpetuated through electronic devices. Smartphones have dominated the mobile device market and have allowed its users to download mobile applications and games to the device. Pokémon Go, is the latest trend in mobile gaming and the start to a bright future of augmented reality. But what happens when augmented reality meets the physical world? Do our modern-day statutes and laws extend into the cyberspace that it is augmented reality? What happens when a user of an augmented reality game enters onto the property of ...


Restoring Rogers: Video Games, False Association Claims, And The “Explicitly Misleading” Use Of Trademarks, 16 J. Marshall Rev. Intell. Prop. L. 306 (2017), William K. Ford Jan 2017

Restoring Rogers: Video Games, False Association Claims, And The “Explicitly Misleading” Use Of Trademarks, 16 J. Marshall Rev. Intell. Prop. L. 306 (2017), William K. Ford

The John Marshall Review of Intellectual Property Law

Courts have long struggled with how to balance false association claims brought under the Lanham Act with the protections for speech under the First Amendment. The leading approach is the Rogers test, but this test comes in multiple forms with varying degrees of protection for speech. A substantial portion of the litigation raising this issue now involves video games, a medium that more so than others, likely needs the benefit of a clear rule that protects speech. The original version of the test is the simplest and the one most protective of speech. In 2013, the Ninth Circuit endorsed the ...


Blocking Ad Blockers, 16 J. Marshall Rev. Intell. Prop. L. 272 (2017), Tyler Barbacovi Jan 2017

Blocking Ad Blockers, 16 J. Marshall Rev. Intell. Prop. L. 272 (2017), Tyler Barbacovi

The John Marshall Review of Intellectual Property Law

The prevalence of ad blocking software (software that prevents the loading of web based advertisements) is a growing problem for website owners and content creators who rely on advertising revenue to earn money. While the number of ad block users continues to increase, there has thus far been no significant legal challenge to ad blocking in the United States. This comment examines how a website owner, through a combination of technological improvements and the anti-circumvention provisions of the Digital Millennium Copyright Act, could successfully raise a legal challenge against the purveyors of ad blocking software.


Alice-Backed Securitization: Start-Ups’ New Alternative To Venture Capital, 16 J. Marshall Rev. Intell. Prop. L. 246 (2017), Robert Laverty Jan 2017

Alice-Backed Securitization: Start-Ups’ New Alternative To Venture Capital, 16 J. Marshall Rev. Intell. Prop. L. 246 (2017), Robert Laverty

The John Marshall Review of Intellectual Property Law

As of 2016, the United States software industry added $1.07 trillion in total value to the U.S. economy alone. Today, it’s no mystery that high-tech solutions are embedded in the fabric of our world. Venture Capital has been the dominant source of funding for startup and midsize high-tech firms for the last two decades. However, Venture Capital funding comes at a hefty cost. Young developing high-tech firms are often forced to bargain large shares of their ownership and managerial control to receive the funding they need to realize their potential. But, what if high-tech firms didn’t ...


An Empirical Study Of Law Journal Copyright Practices, 16 J. Marshall Rev. Intell. Prop. L. 207 (2017), Brian Frye, Christopher Ryan, Franklin Runge Jan 2017

An Empirical Study Of Law Journal Copyright Practices, 16 J. Marshall Rev. Intell. Prop. L. 207 (2017), Brian Frye, Christopher Ryan, Franklin Runge

The John Marshall Review of Intellectual Property Law

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright ...


The Ambush At Rio, 16 J. Marshall Rev. Intell. Prop. L. 350 (2017), Adam Epstein Jan 2017

The Ambush At Rio, 16 J. Marshall Rev. Intell. Prop. L. 350 (2017), Adam Epstein

The John Marshall Review of Intellectual Property Law

The purpose of this article is to explore the role of the International Olympic Committee’s (IOC) codified marketing policy known as Rule 40 which emerged to prevent ambush marketing of its biennial events. Rule 40 has quickly evolved into a controversial rule for athletes, coaches and sponsors alike who are involved in the Olympic Movement. The IOC believes that social media is a ubiquitous threat to its intellectual property during the Olympic Games akin to traditional print and television ambush marketing campaigns. As a result, the 2016 Rio De Janeiro (Rio) Summer Olympic Games represented the most intense clash ...


Plausibility Under The Defend Trade Secrets Act, 16 J. Marshall Rev. Intell. Prop. L. 188 (2017), Michelle Evans Jan 2017

Plausibility Under The Defend Trade Secrets Act, 16 J. Marshall Rev. Intell. Prop. L. 188 (2017), Michelle Evans

The John Marshall Review of Intellectual Property Law

With the recent passage of the Defend Trade Secrets Act (DTSA), a federal civil cause of action for trade secret misappropriation is now available. To add some familiarity to the Act, the drafters incorporated definitions similar to those of the Uniform Trade Secrets Act (UTSA). However, even though the provisions may seem familiar, there is a new requirement that is not obvious on the face of the statute- the plausibility requirement for pleading under the federal rules. To understand plausibility; however, one must understand the DTSA. Unfortunately, there is no guidance from the DTSA that can aid interpretation of the ...


Design Patent Litigation: Is "Obvious To Try" Unavailable For Validity Challenges Under 35 U.S.C. § 103?, 16 J. Marshall Rev. Intell. Prop. L. 173 (2017), Scott Locke Jan 2017

Design Patent Litigation: Is "Obvious To Try" Unavailable For Validity Challenges Under 35 U.S.C. § 103?, 16 J. Marshall Rev. Intell. Prop. L. 173 (2017), Scott Locke

The John Marshall Review of Intellectual Property Law

Ten years ago, the United States Supreme Court shook the foundation of U.S. patent law when it announced that a patented invention could be invalidated because the claimed combination of heightened the thr whether a person of ordinary skill in the art would deem a combination of features obvious to try can be measured against a perceived a likelihood of success for achieving a purpose. But the concept does not easily translate to design patents. Those types of patents are directed to ornamental features, which by definition cannot be dictated by functionality, and thus, the success of a combination ...


Commercial Creations: The Role Of End User License Agreements In Controlling The Exploitation Of User Generated Content, 16 J. Marshall Rev. Intell. Prop. L. 382 (2017), Neha Ahuja Jan 2017

Commercial Creations: The Role Of End User License Agreements In Controlling The Exploitation Of User Generated Content, 16 J. Marshall Rev. Intell. Prop. L. 382 (2017), Neha Ahuja

The John Marshall Review of Intellectual Property Law

This article considers the current licensing regime used to control the exploitation of copyright protected works within the online interactive entertainment sector—particularly virtual worlds including multiplayer online games—to further author new copyrightable works. This article aims to identify the gaps that have arisen on account of the nature of these subsequently authored works and the potential for their exploitation under the said licensing regime. Users and the proprietors of virtual worlds often end up in conflict over the monetization and commercialization of user generated content on account of contradictory yet overlapping rights created by copyright law when controlled ...


I Dissent: The Federal Circuit’S “Great Dissenter,” Her Influence On The Patent Dialogue, And Why It Matters, 19 Vand. J. Ent. & Tech. 873 (2017), Daryl Lim Jan 2017

I Dissent: The Federal Circuit’S “Great Dissenter,” Her Influence On The Patent Dialogue, And Why It Matters, 19 Vand. J. Ent. & Tech. 873 (2017), Daryl Lim

Faculty Scholarship

This Article is the first study to comprehensively explore the centrality of the patent dialogue at the Court of Appeals for the Federal Circuit, the nation’s principal patent court from empirical, doctrinal, and policy perspectives. It offers several insights into how the Federal Circuit reaches consensus and when it does not, serving as a window into its inner workings, a reference to academics, judges, and attorneys alike. More broadly, this Article provides a template to study the “legal dialogue” of other judges at the Federal Circuit, those in other Circuits, as well as those in other areas of the ...


What Investigative Resources Does The International Criminal Court Need To Succeed?: A Gravity-Based Approach, 16 Wash. U. Global Stud. L. Rev. 1 (2017), Stuart Ford Jan 2017

What Investigative Resources Does The International Criminal Court Need To Succeed?: A Gravity-Based Approach, 16 Wash. U. Global Stud. L. Rev. 1 (2017), Stuart Ford

Faculty Scholarship

There is an ongoing debate about what resources the International Criminal Court (ICC) needs to be successful. On one side of this debate are many of the Court’s largest funders, including France, Germany, Britain, Italy, and Japan. They have repeatedly opposed efforts to increase the Court’s resources even as its workload has increased dramatically in recent years. On the other side of the debate is the Court itself and many of the Court’s supporters within civil society. They have taken the position that it is underfunded and does not have sufficient resources to succeed. This debate has ...


An Evidentiary Oddity: “Careful Habit” – Does The Law Of Evidence Embrace This Archaic/Modern Concept?, 43 Ohio N.U. L. Rev. 293 (2017), Marc Ginsberg Jan 2017

An Evidentiary Oddity: “Careful Habit” – Does The Law Of Evidence Embrace This Archaic/Modern Concept?, 43 Ohio N.U. L. Rev. 293 (2017), Marc Ginsberg

Faculty Scholarship

The concept of the “careful habit”[i] is intriguing. The law of evidence vigorously distinguishes between character evidence (largely inadmissible)[ii] and habit evidence (presumptively admissible).[iii] Character is understood as a propensity to act in a certain fashion[iv]—a person’s disposition. Habit is understood as non-volitional, repetitive specific conduct, in response to stimuli, over a rather lengthy period of time.[v] “Carefulness” is known by the law as a character trait.[vi] Carefulness should not be confused with habit, yet this confusion has occurred in multiple jurisdictions, many years ago and recently. This paper seeks to explore ...


Will I Pass The Bar Exam? Predicting Student Success Using Lsat Scores And Law School Performance, 45 Hofstra L. Rev. 753 (2017), Katherine Austin, Catherine Martin Christopher, Darby Dickerson Jan 2017

Will I Pass The Bar Exam? Predicting Student Success Using Lsat Scores And Law School Performance, 45 Hofstra L. Rev. 753 (2017), Katherine Austin, Catherine Martin Christopher, Darby Dickerson

Faculty Scholarship

No abstract provided.


Article Xiv, Section 3 Of The Illinois Constitution: A Limited Initiative To Amend The Article On The Legislature, 48 Loy. U. Chi. L.J. 899 (2017), Ann Lousin Jan 2017

Article Xiv, Section 3 Of The Illinois Constitution: A Limited Initiative To Amend The Article On The Legislature, 48 Loy. U. Chi. L.J. 899 (2017), Ann Lousin

Faculty Scholarship

No abstract provided.


Protective Plan Provisions For Employer-Sponsored Employee Benefits Plans, 18 Marq. Ben. & Soc. Welfare L. Rev. 1 (2017), Kathryn J. Kennedy Jan 2017

Protective Plan Provisions For Employer-Sponsored Employee Benefits Plans, 18 Marq. Ben. & Soc. Welfare L. Rev. 1 (2017), Kathryn J. Kennedy

Faculty Scholarship

No abstract provided.


Insuring Bias: Does Evidence Of Common Insurance Demonstrate Relevant Expert Witness Bias In Medical Negligence Litigation?, 55 Duq. L. Rev. 339 (2017), Marc Ginsberg Jan 2017

Insuring Bias: Does Evidence Of Common Insurance Demonstrate Relevant Expert Witness Bias In Medical Negligence Litigation?, 55 Duq. L. Rev. 339 (2017), Marc Ginsberg

Faculty Scholarship

No abstract provided.


Beyond Canterbury: Can Medicine And Law Agree About Informed Consent? And Does It Matter?, 45 J.L. Med. & Ethics 106 (2017), Marc Ginsberg Jan 2017

Beyond Canterbury: Can Medicine And Law Agree About Informed Consent? And Does It Matter?, 45 J.L. Med. & Ethics 106 (2017), Marc Ginsberg

Faculty Scholarship

For those of us whose scholarship focuses on medico-legal jurisprudence, the law of informed consent is a gift. It has been a fertile topic of discussion for decades, with no end in sight. Although it is not difficult to acknowledge that patient autonomy is at the core of informed consent, the doctrine is not static - it has evolved in scope and continues to engage courts in thought provoking analysis.


Seeing The Wrecking Ball In Motion: Ex Parte Protection Orders And The Realities Of Domestic Violence, 32 Wis. J.L. Gender & Soc'y 13 (2017), Debra Pogrund Stark, Jessica M. Choplin Jan 2017

Seeing The Wrecking Ball In Motion: Ex Parte Protection Orders And The Realities Of Domestic Violence, 32 Wis. J.L. Gender & Soc'y 13 (2017), Debra Pogrund Stark, Jessica M. Choplin

Faculty Scholarship

No abstract provided.


Retooling The Intellectual Property-Antitrust Intersection: Insights From Behavioral Economics, 69 Baylor L. Rev. 124 (2017), Daryl Lim Jan 2017

Retooling The Intellectual Property-Antitrust Intersection: Insights From Behavioral Economics, 69 Baylor L. Rev. 124 (2017), Daryl Lim

Faculty Scholarship

This Article argues that courts should operationalize insights offered by behavioral economics in developing jurisprudence at the patent-antitrust interface.


Communication Conundrums: Theories About And Tips For Effective Decanal Communication, 48 U. Tol. L. Rev. 211 (2017), Darby Dickerson, Marjorie Buckner Jan 2017

Communication Conundrums: Theories About And Tips For Effective Decanal Communication, 48 U. Tol. L. Rev. 211 (2017), Darby Dickerson, Marjorie Buckner

Faculty Scholarship

Clear and effective communication is essential for any organization, including a law school, to operate effectively. But communication is often one of the trickiest skills a law dean must seek to master. Once a person adds “Dean” to the front of his or her name, communication norms change. A dean must be sensitive to power structures—whether real or perceived— that exist within the law school. A dean also must be vigilant about how she communicates with others, and how others communicate on her behalf. And she must understand that people will communicate differently with her than with others in ...