Law Commons^™

International Legal Protection Of Trademarks In China, Robert H. Hu

Robert Hu

In China, the concept of intellectual property is relatively new. Chinese officials began taking steps towards trademark regulations in the 1950s, but it was not until 1982 that the first Chinese Trademark Law was enacted. Today, because of the growing global economy, China has had the highest number of trademark requests in the world for the fifth year in a row. In response to domestic and international pressures, Chinese trademark law and courts have had to adapt to the ever-changing landscape. This article first examines the development of Chinese intellectual property law through the international trademark agreements where China is …

Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Leslie A. Street, David R. Hansen, Kyle K. Courtney

Leslie A. Street

No abstract provided.

Improper Appropriation, Daniel J. Gervais

Daniel J Gervais

The traditional (Arnstein) test for copyright infringement is satisfied when the owner of a valid copyright establishes unauthorized copying by the defendant. To demonstrate unauthorized copying, one of the major tests is that the plaintiff must first show that her work was actually copied; second, she must establish substantial similarity and/or that the copying amounts to an improper or unlawful appropriation. The second prong is satisfied when (i) protected expression in the earlier work was copied and (ii) the amount of the copyrighted work that is copied must be more than de minimis. This Article examines, first, how impropriety has …

The Patent Option, Daniel J. Gervais

Daniel J Gervais

There is a shift in the shape of intellectual property (IP) tools used to strengthen and lengthen the right of pharmaceutical companies to exclude others from making and marketing their products. Patents have traditionally been the tool of choice. Over the past two decades, however, pharmaceutical companies have increased their degree of reliance on a right known as “data exclusivity.” This right, which now exists in most major jurisdictions, is the right to prevent third parties from relying on the clinical trial data submitted by another pharmaceutical company to obtain marketing approval for a bioequivalent or biosimilar product. The right …

Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel J. Gervais

Daniel J Gervais

Investor-state dispute-settlement (ISDS) clauses give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitration tribunal. This jurisgenerative right to file a claim in an international tribunal with mandatory jurisdiction is generally reserved to States. ISDS is a mechanism meant to protect the private property of multinational investors against certain acts of public authorities.

Intellectual Property differs from the more traditional private (property) law interests that ISDS aims to protect. IP incorporates public policy objectives such as innovation, access to information or public health that are reflected in limitations and exceptions to the …

Exploring The Interfaces Between Big Data And Intellectual Property Law, Daniel J. Gervais

Daniel J Gervais

This article reviews the application of several IP rights (copyright, patent, sui generis database right, data exclusivity and trade secret) to Big Data. Beyond the protection of software used to collect and process Big Data corpora, copyright’s traditional role is challenged by the relatively unstructured nature of the non-relational (noSQL) databases typical of Big Data corpora. This also impacts the application of the EU sui generis right in databases. Misappropriation (tort-based) or anti-parasitic behaviour protection might apply, where available, to data generated by AI systems that has high but short-lived value. Copyright in material contained in Big Data corpora must …

Symposium: Commodification, Intellectual Property And The Quilters Of Gee's Bend, Victoria F. Phillips

Victoria Phillips

No abstract provided.

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

James Y. Stern

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …

Abc V. Aereo And The Humble Judge, James Y. Stern

James Y. Stern

No abstract provided.

The Intellectual Property Hostage In Trade Retaliation, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

Intellectual property law has become bound up in a debate about appropriate remedies for violations of the World Trade Organization Agreement. As an alternative to traditional countermeasures that consist of retaliation under the violated agreement, the World Trade Organization ("WTO ") contemplates that violations of one of its covered agreements may be remedied through "cross-retaliation, " or retaliation under another agreement. One form of cross-retaliation has garnered interest in recent years: the threat to suspend intellectual property rights in response to unrelated trade violations

Cross-retaliation through intellectual property rights suspension is theoretically appealing for its potential to avoid problems inherent …

Tailoring Remedies To Spur Innovation, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

An emerging rule in the district courts—thus far endorsed by the United States Court of Appeals for the Federal Circuit—allows a victorious patent holder to receive a permanent injunction against an infringer if she is able to show that she has suffered a loss of market share due to the infringement. The larger the loss of market share the patent holder can prove, the more likely the court will issue an injunction. This “market share rule” is a response to the Supreme Court’s ruling in eBay Inc. v. MercExchange, L.L.C., exhorting lower courts to engage in equitable balancing before awarding …

Impression Products, Inc. V. Lexmark Inc.: Will International Patent Exhaustion Bring Free Trade In Patented Goods?, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

No abstract provided.

Evaluating Flexibility In International Patent Law, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

Global patent law has raced toward harmonization over the past decades. Countries with vastly different industries, values, and levels of development now offer robust patent rights with similar contours through membership in the World Trade Organization and consequent adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). However, patent law is still far from harmonized among countries or static within countries. Jurisdictions tailor their patent laws to accommodate differences between industries, unforeseen inefficiencies, and diverse views of the costs and benefits associated with offering patent rights to stimulate innovation. Prior scholarly work consists of either doctrinal analyses …

Infringement, Unbound, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

No abstract provided.

Free Trade In Patented Goods: International Exhaustion For Patents, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

Modern international trade law seeks to increase global welfare by lowering barriers to trade and encouraging international competition. This “free trade” approach, while originally applied to reduce tariffs on trade, has been extended to challenge non-tariff barriers, with modern trade agreements targeting telecommunication regulations, industrial and product safety standards, and intellectual property rules. Patent law, however, remains inconsistent with free-trade principles by allowing patent holders to subdivide the world market along national borders and to forbid trade in patented goods from one nation to another. This Article demonstrates that the doctrines thwarting free trade in patented goods are protectionist remnants …

Patents Absent Adversaries, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

No abstract provided.

Regulatory And Judicial Implementations Of Patent Law Flexibilities, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

No abstract provided.

Forum On Attorney's Fees In Copyright Cases: Are We Running Through The Jungle Now Or Is The Old Man Still Stuck Down The Road?, Paul Marcus, David Nimmer

Paul Marcus

No abstract provided.

The Reasonable Person In Trademark Law, Laura A. Heymann

Laura A. Heymann

No abstract provided.

The Trademark/Copyright Divide, Laura A. Heymann

Laura A. Heymann

No abstract provided.

The Scope Of Trademark Law In The Age Of The Brand Persona, Laura A. Heymann

Laura A. Heymann

No abstract provided.

The Public's Domain In Trademark Law: A First Amendment Theory Of The Consumer, Laura A. Heymann

Laura A. Heymann

No abstract provided.

The Grammar Of Trademarks, Laura A. Heymann

Laura A. Heymann

How do people talk when they talk about trademarks? If trademarks have
become, as linguist Geoffrey Nunberg suggests, our “new global tongue,”
perhaps we should pay greater attention to the grammar we use when we
talk about them. We use “Coke” to refer to the Coca-Cola beverage in the
North, and “coke” to refer to any kind of soda in the South, yet we still
manage to get the drinks we desire. We use trademarks as verbs—we
“xerox” a document or “tivo” a television program—without losing sight
of the fact that “Xerox” and “TiVo” are brands of particular products.
We …

Reading Together And Apart: Juries, Courts, And Substantial Similarity In Copyright Law, Laura A. Heymann

Laura A. Heymann

No abstract provided.

Reasonable Appropriation And Reader Response, Laura A. Heymann

Laura A. Heymann

Since the U.S. Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., many courts have considered, when evaluating a claim of fair use in copyright, whether the defendant’s use of the plaintiff’s work is “transformative,” which the Campbell Court described as “add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

In Cariou v. Prince, the Second Circuit shifted the focus of the analysis, both confirming that a work could be transformative even if it did not comment on the original work or its author and stating that the key to …

The Birth Of The Authornym: Authorship, Pseudonymity, And Trademark Law, Laura A. Heymann

Laura A. Heymann

Consumers in the marketplace of ideas are well acquainted with one aspect of the Foucauldian concept of the "author function": the way in which an author's name serves to organize both producer inputs-the various works the author wishes to have associated with his name-and consumer inputs-the readers' interpretive reactions to any particular body of work. Indeed, choosing to write under a pseudonym or under one's true name is the way in which an author exerts control over this function by grouping certain works (for example, scholarly pieces) under one name and other works (for example, mystery novels) under a different …

How To Write A Life: Some Thoughts On Fixation And The Copyright/Privacy Divide, Laura A. Heymann

Laura A. Heymann

No abstract provided.

Metabranding And Intermediation: A Response To Professor Fleischer, Laura A. Heymann

Laura A. Heymann

No abstract provided.

Inducement As Contributory Copyright Infringement: Metro-Goldwyn-Mayer Studios Inc. V. Grokster, Ltd., Laura A. Heymann

Laura A. Heymann

No abstract provided.

Overlapping Intellectual Property Doctrines: Election Of Rights Versus Selection Of Remedies, Laura A. Heymann

Laura A. Heymann

Overlaps exist across various doctrines in federal intellectual property law. Software can be protected under both copyright law and patent law; logos can be protected under both copyright law and trademark law. Design patents provide a particular opportunity to consider the issue of overlap, as an industrial design that qualifies for design patent protection might also, in particular circumstances, qualify for copyright protection as well as function as protectable trade dress.

When an overlap issue arises—that is, when an intellectual property rights holder asserts rights under more than one doctrine—the question then becomes how courts should respond. One response, of …