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Full-Text Articles in Law
Fashion's Function In Intellectual Property Law, Christopher Buccafusco, Jeanne C. Fromer
Fashion's Function In Intellectual Property Law, Christopher Buccafusco, Jeanne C. Fromer
Notre Dame Law Review
Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply …
(Un)Common Law Protection Of Certification Marks, Michelle B. Smit
(Un)Common Law Protection Of Certification Marks, Michelle B. Smit
Notre Dame Law Review
Part I of this Note defines and examines the general principles of certification marks. From that foundation, Part II provides an overview of the case law on unregistered common law certification marks. Part III analyzes the reasons why abuses of certification marks would increase under a commonlaw regime and posits that certification marks, therefore, should only exist under federal law. Finally, Part IV proposes several adjustments that should be made to the current certification mark registration system in order to address existing shortcomings that affect both consumers and third-party businesses.
Honest Copying Practices, Joseph P. Fishman
Honest Copying Practices, Joseph P. Fishman
Notre Dame Law Review
One of intellectual property theory’s operating assumptions is that creating is hard while copying is easy. But it is not always so. Copies, though outwardly identical, can come from different processes, from cheap digital duplication to laborious handmade re-creation. Policymakers around the world face a choice whether such distinctions should affect liability. The two branches of intellectual property that condition liability on actual copying, copyright and trade secrecy, give different answers. Both in the United States and elsewhere, trade secrecy regimes distinguish between copying methods deemed illegitimate and those deemed legitimate, what international treaties call “honest commercial practices.” Copyright regimes, …
Raising Walls Against Overlapping Rights: Preemption And The Right Of Publicity, Rebecca Tushnet
Raising Walls Against Overlapping Rights: Preemption And The Right Of Publicity, Rebecca Tushnet
Notre Dame Law Review
By comparing how preemption and First Amendment law have used purposive approaches to limit the right of publicity, we can see something about how boundary work in intellectual property law (IP) is done—badly, usually, with justifications that aren’t consistent or that assume that other regimes work differently than they actually do. One improvement would be to embrace categorical approaches, rather than unpredictable case-by-case balancing; both preemption and First Amendment doctrines can lend themselves to this approach. Another improvement would be to think of the First Amendment as an intellectual property regime of its own, one with general preemptive power.
Spill Your (Trade) Secrets: Knowledge Networks As Innovation Drivers, Laura G. Pedraza-Fariña
Spill Your (Trade) Secrets: Knowledge Networks As Innovation Drivers, Laura G. Pedraza-Fariña
Notre Dame Law Review
Theories of intellectual property take the individual inventor or the firm as the unit of innovation. But studies in economic sociology show that in complex fields where knowledge is rapidly advancing and widely dispersed among different firms, the locus of innovation is neither an individual nor a single firm. Rather, innovative ideas originate in the informal networks of learning and collaboration that cut across firms.
Understanding innovation in this subset of industries as emerging out of networks of informal information-sharing across firms challenges traditional utilitarian theories of trade secret law—which assume trade secret protection is needed to prevent excessive private, …
Risk Regulation And Innovation: The Case Of Rights-Encumbered Biomedical Data Silos, Arti K. Rai
Risk Regulation And Innovation: The Case Of Rights-Encumbered Biomedical Data Silos, Arti K. Rai
Notre Dame Law Review
This Article discusses whether, and how, risk and social regulation can promote socially valuable innovation. The focus is on regulation as a force for creating a data infrastructure for future innovation. This Article briefly summarizes the history of overlapping and adjacent intellectual property rights in biomedical innovation. It then discusses the manner in which the Supreme Court’s reaction to such rights concentration may exacerbate legally-encumbered diagnostic data silos. It will go on to outlines the basic history of biopharmaceutical trial data silos as well as the core legal and policy arguments in favor of increasing access to the aggregated data …
Trademarks And Digital Goods, Mark P. Mckenna, Lucas S. Osborn
Trademarks And Digital Goods, Mark P. Mckenna, Lucas S. Osborn
Notre Dame Law Review
This article argues that the question of whether we should treat digital files as relevant goods is irreducibly one of policy, and it should not be reduced to mere formalism. Digital files should be treated as goods only when consumers’ interactions with the files sufficiently resemble their interactions with physical goods that they warrant the same treatment. In particular, this article argues that digital files should be treated as goods only when the origin of the files as such (not the content of those files) is material to consumers. That may turn out to be relatively rare. Indeed, this article …
The Demise Of The Functionality Doctrine In Design Patent Law, Perry J. Saidman
The Demise Of The Functionality Doctrine In Design Patent Law, Perry J. Saidman
Notre Dame Law Review
The doctrine of functionality, in both the validity and infringement contexts, has outlived its usefulness, and analyzing it is a waste of litigants’ and judicial resources.
Territorial Overlaps In Trademark Law: The Evolving European Model, Graeme B. Dinwoodie
Territorial Overlaps In Trademark Law: The Evolving European Model, Graeme B. Dinwoodie
Notre Dame Law Review
Courts in the European Union have in a number of recent cases resisted some of the innovations of the EU system and have affirmed the enduring pull of a different conception of territoriality. This Article defends many of these acts of resistance, and supports further modifications of the EU model, in part because of the increased problem of overlapping rights. That increased overlap requires a critical reading of these innovative mechanisms and attention to a broader range of values in implementing the model. These propositions are supported both by a more theoretically complex conception of trademark territoriality and a richer …
Did Ebay Irreparably Injure Trademark Law?, Mark A. Lemley
Did Ebay Irreparably Injure Trademark Law?, Mark A. Lemley
Notre Dame Law Review
This Article argues that, while the Supreme Court's holding in eBay v. MercExchange was a good—indeed, great—development in patent and copyright law, trademark is different. The purposes of trademark law—and whom it benefits—should lead us to treat trademark injunctions differently than patent and copyright injunctions. Further, trademark courts have misinterpreted eBay, treating each of the four factors the Court enumerated as a requirement rather than a consideration. That is a particular problem in trademark law, where proof of future injury can be elusive. And perhaps most remarkably, courts have expanded eBay in trademark cases at the same time they have …
Introduction: Negotiating Ip's Boundaries In An Evolving World, Stephen Yelderman
Introduction: Negotiating Ip's Boundaries In An Evolving World, Stephen Yelderman
Notre Dame Law Review
The common element of the articles that make up this Symposium Issue is a refusal to dismiss difficult questions with mechanical formality, to paper over the wrinkles that emerge when the simple models that function in the middle flounder at the edge. As this Symposium Issue will show, those wrinkles have a lot to tell us.
Strategies For Discerning The Boundaries Of Copyright And Patent Protections, Pamela Samuelson
Strategies For Discerning The Boundaries Of Copyright And Patent Protections, Pamela Samuelson
Notre Dame Law Review
When presented with copyright claims as to seemingly ambiguous subject matters, courts and the Copyright Office have developed several different responses. The most common has been a layering or segmentation approach under which courts treat some aspects of an intellectual creation as protectable by copyright law, while other aspects may be protectable, if at all, by utility patents. But five other strategies for determining copyright and utility patent boundaries are evident in the literature, each of which has sought to preserve separate and distinct domains for copyright and utility patent protections.
Expired Patents, Trade Secrets, And Stymied Competition, W. Nicholson Price Ii
Expired Patents, Trade Secrets, And Stymied Competition, W. Nicholson Price Ii
Notre Dame Law Review
Patents and trade secrecy have long been considered substitute incentives for innovation. When inventors create a new invention, they traditionally must choose between the two. And if inventors choose to patent their invention, society provides strong legal protection in exchange for disclosure, with the understanding that the protection has a limit: it expires twenty years from the date of filing. At that time, the invention is opened to the public and exposed to competition.
This story is incomplete. Patent disclosure is weak and focuses on one technical piece of an invention—but that piece is often only a part of the …
Boundaries, Extraterritoriality, And Patent Infringement Damages, Timothy R. Holbrook
Boundaries, Extraterritoriality, And Patent Infringement Damages, Timothy R. Holbrook
Notre Dame Law Review
Patents are generally considered to be the most territorial of all the various forms of intellectual property. Even patent law, however, has confronted issues involving the application of a U.S. patent to extraterritorial activity. The Supreme Court has expressed an interest in both issues – the extraterritorial application of U.S. law and patent law. At times, these interests have intersected. Notwithstanding the Court’s recent elaborations on extraterritoriality, the approach by the U.S. Court of Appeals for the Federal Circuit has been, at best, inconsistent. At times the court has afforded extraterritorial protection, even in the face of strong territorial language …
Two Steps Forward, One Step Back: The Defend Trade Secrets Act Of 2016 And Why The Computer Fraud And Abuse Act Of 1984 Still Matters For Trade Secret Misappropriation, Patrick J. Manion
Two Steps Forward, One Step Back: The Defend Trade Secrets Act Of 2016 And Why The Computer Fraud And Abuse Act Of 1984 Still Matters For Trade Secret Misappropriation, Patrick J. Manion
Journal of Legislation
No abstract provided.
Copyright And Distributive Justice, Justin Hughes, Robert P. Merges
Copyright And Distributive Justice, Justin Hughes, Robert P. Merges
Notre Dame Law Review
Is our copyright system basically fair? Does it exacerbate or ameliorate
the skewed distribution of wealth in our society? Does it do anything at all
for disempowered people, people at the bottom of the socio-economic hierarchy?
In this Article we engage these questions. Our goal is to begin a more
comprehensive discussion of the effect the copyright system has on the allocation
of wealth in our society.
Expecting The Unexpected, Mark A. Lemley
Expecting The Unexpected, Mark A. Lemley
Notre Dame Law Review
One of the most important legal doctrines designed to decide whether an invention would be obvious to those in the field is the doctrine of “unexpected results.” If the patentee’s invention produced unexpected results, the law says, that is pretty good evidence that it wasn’t obvious. A second important doctrine is that if it is obvious to try to make something, and if those who might try would expect to succeed, making that thing is not patentable. These two doctrines can conflict, and they do with some frequency in the chemical and pharmaceutical industries. Courts have not yet decided how …
2016 Trademark Year In Review, Mark P. Mckenna, Shelby Niemann
2016 Trademark Year In Review, Mark P. Mckenna, Shelby Niemann
Notre Dame Law Review Reflection
This brief Essay reviews some of the most significant developments in trademark law during the past year. In most cases, we have interpreted “year” fairly liberally, particularly to highlight some longer-term trends. We focus on six areas: (1) the constitutionality of section 2(a) of the Lanham Act; (2) the Fourth Circuit’s Belmora decision and the availability of section 43(a) claims when the plaintiff has not used a mark in the United States; (3) the effect of B & B Hardware; (4) injunctive relief and the presumption of irreparable harm; (5) nominative fair use; and (6) initial interest confusion.
Incentivizing Graffiti: Extending Copyright Protection To A Prominent Artistic Movement, Sara Cloon
Incentivizing Graffiti: Extending Copyright Protection To A Prominent Artistic Movement, Sara Cloon
Notre Dame Law Review Reflection
This Note outlines a brief history of graffiti, emphasizes the growing importance of graffiti as an accepted and widespread artistic movement, and applies the copyright requirements under the Copyright Act and the Visual Artists Rights Act to graffiti. Finally, this Note argues that under an incentive-based theory of intellectual property, copyright law should not exclude graffiti when it already fits within statutory law, as this would create inefficiency and contradiction in copyright law, which is meant to continually expand to accept new art forms.
Reinvention, Sean B. Seymore
Reinvention, Sean B. Seymore
Notre Dame Law Review
It is axiomatic that once an invention has been patented, it cannot be patented again. This aligns with the quid pro quo theory of patents—the public would receive nothing new in exchange for the second patent. Enforcing this rule is done through the novelty requirement, which bars a patent if the invention is already known. But the rule is hard to justify if the original patentee reneged on the quid pro quo by inadequately disclosing how to make and use the invention. The inadequate disclosure suggests that the original inventor did not invent anything and the public received no benefit …