Law Commons^™

Trial By Trademark: Why The Trademark System Needs To Stand On Its Own Two Marks, Ben Siegel

Journal of Intellectual Property Law

While IP-intensive industries continue to produce a significant portion of the American economy, trademarks consistently remain a substantial portion. Given trademarks’ increasingly pivotal role in the global economy, the complexities and nuances of trademark law demand a specialized approach. In examining the current trademark landscape, many scholars have underscored the paradox of its fractured nature, despite its fundamental role in the economy. Currently, trademark law suffers from a lack of uniformity across the various circuits in critical areas of the law itself, as well as vulnerabilities in forum shopping and confusion for businesses.

Rather than endorsing the conventional approach to …

The Unregulated Digital Playground: Why Kids Need Right Of Publicity Protections From Their Parents, Sophie Polo

Journal of Intellectual Property Law

As social media continues to become more prevalent in society, profitability on social media platforms continues to increase. Parents have discovered ways to profit online by using their children in content to gather views, therefore taking advantage of their children's right of publicity. While some parents use this profit to raise their children, there is no guarantee that children benefit from their parent's use of their name, image, or likeness. Since social media is still a relatively new space, there are not many protections for the interests of children on social media compared to other areas such as child acting. …

"Cheer Is A Sport": The Ncaa, Title Ix Compliance, And Nil, Mary Kate Mclean

Journal of Intellectual Property Law

Over fifty years have passed since the famous women’s rights Title IX legislation was enacted. Equal opportunity for women in education, and specifically in colligate athletics, has been an ongoing game since 1972 and while drastic improvements have been made, the playing field is still not even for female student-athletes. Many universities continue to struggle with Title IX Compliance and recent events and trends including the Covid-19 pandemic and the increasing female undergraduate population have dramatized the problems. In the wake of the Name, Image, and Likeness era, a solution to compliance is more important now than ever where a …

Leveling Up Fair Use: The Ultimate Cheat Code For Video Game Modders In The Wake Of Google V. Oracle, Parker G. Furman

Journal of Intellectual Property Law

Video game modifications, or "mods," made by third parties or fans of a video game, have reached the limelight of mainstream video game popularity. The internet has become a space for mod makers to share their creations with any user, without the need for physical modifications to a game cartridge or circuit board. Instead, mod software allows a player to install mods with ease and is extremely accessible, yet under the law, the legal status of video game mods remains uncertain. Video game mods are seen as infringing the copyright of the original game. This Note examines the application of …

Marking The Metaverse: The Implication Of Nfts On Trademark Law, Hanna Esserman

Journal of Intellectual Property Law

Within the last decade, internet users have witnessed the birth, rise, and mainstream popularity of the Non-Fungible Token, or “NFT.” Nearly ten years after the creation of the first NFT, there is now a wave of first impression litigation surfacing which questions the implications of NFTs on intellectual property law. This Note analyzes the intersection of Non-Fungible Tokens and trademark law in the United States.

Until recently, it has been unclear whether Non-Fungible Tokens are eligible to be protected under long-standing federal trademark laws. This includes allegations of NFTs infringing upon existing trademarks, as well as trademarked NFTs being infringed …

The "Wild West" Of State Nil Laws: Asking For Congress To Bail Out The Ncaa, Evan Crowder

Journal of Intellectual Property Law

This Note explores the evolution of the amateur status in college athletics, particularly the absence of a consistent definition for “amateur collegiate athlete” by the NCAA over the years. The traditional demarcation between amateur and professional athletes blurred significantly, particularly with the exponential growth of college football revenues, leading to indistinguishable time commitments for both categories. The landmark case of NCAA v. Alston marked a pivotal moment as the Supreme Court ruled in favor of allowing college athletes to earn compensation for the use of their name, image, and likeness ("NIL"). This decision overturned decades of prohibiting such practices in …

Public Domain And Access To Knowledge, Faith O. Majekolagbe

Journal of Intellectual Property Law

In a world where truth is behind paywalls and lies are free, the importance of a realm of works that are free from copyright protection becomes even more important for access to knowledge and information. This Article considers a thriving and accessible public domain a key mechanism for engendering access to knowledge and propelling human development globally. The copyright public domain as a realm of freely accessible and usable works and elements of works is under immense threat due to the constant extension of the term of copyright protection, disparities in the scope of the public domain globally, the absence …

Ip Protection For Love: Dating App’S Feuds And Foes, Meredith Williams

Journal of Intellectual Property Law

A new method of meeting others and dating online has emerged amid today’s age of technology. Online dating, now largely facilitated through apps, has grown exponentially since its genesis. With this growth, online dating services have sought intellectual property protection. This Note examines the patentability of dating app features, primarily the digital user interface through the backdrop of a recent dispute between Tinder and Bumble. It begins with a history of online dating and analysis of why apps have become a popular tool to launch a business. The Note then delves into a new dating app concept and accompanying patent …

Give Starving Artists A Piece Of The Ip Pie: Making Room At The Table For Performers’ Rights, Meagan A. Sharp

Journal of Intellectual Property Law

Creators protect their valuable intellectual property interests through copyright. Historically, stage performers struggled to secure copyright ownership in their performances within a larger production. As the theatre landscape changes, however, trends indicate that producers will increasingly rely on performers to develop characters and shows. This reliance could prove to be an exploitative practice if performers do not receive additional compensation for their part in creating successful works. This Note first examines the meanings of authorship, fixation, and control under the Copyright Act of 1976, then widens its lens to consider alternate interpretations of these technical terms in light of an …

Transparency Is The Best Policy: The Case For Georgia To Allow Access To The Source Code Of Proprietary Voting Software, Grace Repella

Journal of Intellectual Property Law

Within the past century, electronic voting systems have become common place. Most states hold their elections via electronic voting machines. These voting machines require software, and that software is built out of source code. Most states, including the state of Georgia, use voting machines with proprietary software made by private companies to run their elections. These companies have pushed back against access to the source code of their software because of intellectual property issues related to trade secret and copyright law. Nonetheless, states have an interest in guaranteeing their elections are not vulnerable to attack or hacking, and voters want …

Architectural Copyrights: The Eighth Circuit's Structurally Sound Interpretation Of 17 U.S.C. § 120, Hunter T. Payne

Journal of Intellectual Property Law

The Eighth Circuit expanded architectural copyright protection in Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., by interpreting § 17 U.S.C. 120(a) consistent with both its plain meaning and legislative intent. In doing so, the court took a pivotal step in protecting architects’ copyright interest in floorplans posted on virtual real estate websites without consent. The National Association of Realtors quickly took offense, declaring this an invitation to waves of litigation, hindering the current state of real estate transactions that often occur via websites like Zillow or Redfin. However, as highlighted by the Eighth Circuit, copyright fair use …

To "The" Or Not To "The"? The Question Has Been Answered: An Examination Of Trademark Bullying In The Context Of The Ohio State University's Recent Trademark Registration, Jennifer M. Danker

Journal of Intellectual Property Law

This Note examines the growing concern in the legal community around trademark bullying by specifically focusing on the registration of the word mark “THE” by The Ohio State University (“OSU”) and its potential for abuse and overreach in trademark enforcement. By carefully analyzing relevant legal precedent, statutory provisions, and USPTO administrative procedures, this Note critically considers the offered justifications for and likely consequences of the trademark’s registration.

By exploring the historical progression of trademark law, including its purpose and underlying principles, this Note provides a framework for evaluating the merits and potential concerns associated with the recent registration. Additionally, it …

From America Online To America, Online: Reassessing Section 230 Immunity In A New Internet Landscape, Madeleine E. Blair

Journal of Intellectual Property Law

In 1996, Congress passed the Communications Decency Act, a body of legislation aimed at regulating a nascent internet. Section 230 of the Act has become a subject of contention on both sides of the political aisle due to an immunity provision in the law barring private actions against online service providers for the conduct of those services’ users. Few lawsuits against online entities have survived this immunity provision. But two successful cases, Lemmon v. Snap, Inc. and A.M. v. Omegle.com, LLC, have used a products liability theory to overcome the limitation.

This Note examines Section 230 in light of these …

Rethinking "Reasonableness": Implementation Of A National Board To Clarify The Trade Secret Standard Now That The Work-From-Home Culture Has Changed The Rules, Hannah E. Brown

Journal of Intellectual Property Law

Under the federal Defend Trade Secrets Act (“DTSA”), almost any type of information can qualify as a trade secret but only if the owner has taken “reasonable measures” to keep such information secret. Under case law, what is “reasonable” varies and may differ based on the court, the company size, and the particular facts of each situation. The interpretation of what is “reasonable” must change with the times, specifically, to take into consideration the sharp increase in remote work that accompanied the COVID-19 pandemic. The rise in remote work necessarily means more servers accessing data and more remote transmission of …

Intellectual Heirs Property: Why Certain Musical Copyrights Should Be Included In The Heirs Property Reform Movement, Austin Weatherly

Journal of Intellectual Property Law

The modern heirs property reform movement seeks to ameliorate the issues caused by the procedures governing the inheritance of real property from landowners who die intestate. This procedure can have a negative impact on heirs and the value of their inherited property. The reform movement, as it stands, only seeks to resolve the issues created by these procedures in the real property context. The rhetorical basis for the modern heirs property reform movement largely focuses on closing the racial wealth gap in the United States and slowing the wealth bleed from one black generation to the next. Many of the …

Exposing The “Folklore” Of Re-Recording Clauses (Taylor’S Version), Justin Tilghman

Journal of Intellectual Property Law

Many artists believe that their significance, power, or notoriety comes from how many GRAMMY awards they have won or how well their albums sales do the first week. However, very few artists recognize that the true power comes in the form of owning the rights to their master recordings. Given how difficult it is to achieve commercial success as an independent artist, many artists will turn to major record companies to help with their music production and distribution. This help, however, is not unconditional. The artist will sign over the master recording rights to the song or album to the …

Greasing The Wheels Of Patent Law: Clarifying The Judicial Exceptions Via American Axle & Manufacturing, Inc. V. Neapco Holdings Llc, Michael Oliver

Journal of Intellectual Property Law

Patents stimulate the economy, they give inventors (and investors in the patent) confidence that their work will be protected. You have never been able to patent laws of nature, natural phenomena or abstract ideas. These combine to create the judicial exceptions. The issue is that these terms are so broad that it is difficult to determine when a patent is connected to a judicial exception. The Supreme Court created the Alice test, a two-part test to determine whether a claim is tied to a judicial exception. That was back in 2014 and is the last time the Supreme Court has …

When A “+” Doesn’T Add Anything In The Equation: Analyzing The Effect Of The “+” On Trademark Law, Vasilios Nasoulis

Journal of Intellectual Property Law

In the past decade, there has been a growing trend where companies use the plus sign, “+”, in their branding. From industry titans like Google and Apple to smaller, niche companies like World Champ Tech, there has been an increased use of the + in product and service names. This raises trademark questions about how the mark should be protected and how does the + change the meaning of a name. Trademarks are designed to protect producers as well as consumers from deceit, miscommunication, and misunderstanding. The + potentially denies producers and consumers these protections.

Another trend in the past …

Reconsidering The Willful Blindness Doctrine In Contributory Trademark Infringement, Andrew Ligon Fant

Journal of Intellectual Property Law

The Lanham Act provides for a cause of action of direct trademark infringement. In 1982 the Supreme Court effectively expanded that cause of action by allowing for traditional tort secondary liability in the context of manufacture and distribution of goods. Since that decision, the lower courts have adapted the doctrine of contributory trademark infringement to the modern world. One of those adaptations was the importation of the willful blindness doctrine from criminal law to trademark infringement law. The circuits have divergent standards for what knowledge is required for liability under willful blindness, and the Second Circuit appears to have multiple …

Patent Performativity, Dan L. Burk

Journal of Intellectual Property Law

Gender bias is rife in the patent system; a large and growing body of empirical literature demonstrates the exclusion of women from the patent system at every level. Such pervasive marginalization cannot be explained by the paucity of women in STEM fields. Rather, more fundamental discriminatory mechanisms must be at work. In this paper I examine one aspect of such biases, arguing that patents operate as performatives, that is, as social assemblages that enact what they disclose, and that create their own social facts. To demonstrate patent performativity, I briefly trace the development of performative concepts, from Austinian declarations, through …

A New Way For Voting In American Elections: Addressing The Patentability Of A Blockchain Mail-In Voting System, Brandon D. Waller

Journal of Intellectual Property Law

The novel corona virus turned life upside down throughout the world in 2020. One of its many impacts was the fear it gave people of going out in public as doing such could increase the likelihood of contraction. This disease happened to come about during an election year in the United States and this raised many questions about how voting could be safely conducted. A hot topic debate took over America as to whether or not mail-in voting would suffice. The United States Postal Service sought to find a reliable way to conduct mail-in voting and filed for a patent …

Under The Umbrella: Promoting Public Access To The Law, D.R. Jones

Journal of Intellectual Property Law

People need to know the law and have access to the law. Allowing copyright claims in “the law” can lead to severe restrictions on public knowledge and access. This article reviews court decisions spanning three centuries that have upheld the people’s needs over the proprietary rights of copyright holders. The review includes a discussion and analysis of three recent decisions that are under the umbrella of the principle that members of the public need unfettered access to the law. The Supreme Court in Georgia v. Public.Resource.Org reaffirmed and further refined the government edicts doctrine which holds that government edicts are …

Protecting The Public Domain And The Right To Use Copyrighted Works: Four Decades Of The Eleventh Circuit's Copyright Law Jurisprudence, David E. Shipley

Journal of Intellectual Property Law

This article is about the importance of the copyright law jurisprudence from the U.S. Court of Appeals for the Eleventh Circuit. This appellate court turns 40 in 2021, and it has rendered many influential copyright law decisions in the last four decades. Its body of work is impressive, and this article discusses this court’s important decisions in the following areas: the originality standard; the application of the U.S. Supreme Court’s Feist decision to compilations, directories, computer software, architectural works, and other creative works like movies, photographs, and characters; copyright protection for unfixed works; the scope of the government edicts doctrine; …

Contextualizing Michael Jordan V. Qiaodan Sports: I Don’T Believe I Can Fly, Or Do Business, In China, Justin Blair

Journal of Intellectual Property Law

To be a superstar in America means to live with the pressure of maintaining a certain reputation and level of popularity during one’s professional career. Fame in America often translates to fame internationally, and well-known individuals are typically incentivized to use the constantly evolving internet and media at their disposal to increase global exposure with respect to their brands. American celebrities consequently generate social and monetary capital, and while they willingly increase fan access into their personal lives, opportunistic individuals in foreign territories have on occasion successfully invaded the trademarks of these celebrities. This issue traces back to the turn …

Destruction, The Rebirth Of Art: Analyzing The Right Of Integrity’S Role In Modern Art, Connely Doizé

Journal of Intellectual Property Law

Creative destruction uses destruction to create new meaning in a work. This process is best explained as a Phoenix, rising from the ashes of destruction. The term “Art” encompasses infinite meanings and in this Note, I argue that destruction constitutes one of them. Resulting from this connection, I argue that destruction, specifically Creative Destruction, must not be hampered by law. In 1990, Congress promulgated the Visual Artist Rights Act, 17 U.S.C.A. 106A. This legislation formally introduced the moral rights of attribution and integrity into United States legal doctrine. Specifically, the right of integrity grants an artist the right to prevent …

Oof! Nice Try Congress – The Downfalls Case Act And Why We Should Be Looking To Our Cousins Across The Pond For Guidance In Updating Our New Small Claims Intellectual Property Court, Cori Henris

Journal of Intellectual Property Law

The rise in copyright cases in the United States has led Congress to begin thinking about how to make it more accessible for small creators to fight for their rights in court. The current system for copyrights claims to be brought in the Federal system is too time consuming and costly. Leaving many creators with all the rights to protect their creations but no means to do so when they are infringed upon. The proposed CASE Act was supposed to be the solution. It would create a small claims court in the United States and provide for a location for …

Poverty Via Monopolization: The Impact That Intellectual Property Rights And Federal Subsidies Have On Farm Poverty, Elizabeth Slater

Journal of Intellectual Property Law

The poverty rate among farmers and those living in rural America is about four percent higher than those who live in metropolitan areas. The majority of these farmers rely on farm subsidies from the federal government to offset low farm profits. The seed price for these farmers has increased astronomically, with corn seed representing fifteen percent of total corn production expenses. Federal law contributes to the high input prices by allowing developers of new seed varieties to monopolize their research findings under the Plant Variety Protection Act and other intellectual property protection. Because of the complexity and expense of developing …

Big Tech In A Small Pond: How The Internet Economy Became So Concentrated And What Sector-Specific Regulation Can Do To Reel It In, Andy Wilson

Journal of Intellectual Property Law

While the early days of the internet were marked by a proliferation of new internet platforms offering different services, over time much of the sector became dominated by the handful of internet giants we know today. Discomfort with the outsized role that these enormous companies play in the daily lives of billions has driven a growing consensus that they need to be reined in, culminating in federal and state agencies launching a slew of antitrust suits against Google and Facebook in late 2020. These renewed antitrust efforts will likely be insufficient to address competitive harms in the internet economy, given …

Private Lives At Home And Public Lives In Court: Protecting The Privacy Of Federal Judges' Home Addresses, Hannah Elias Sbaity

Journal of Intellectual Property Law

Targeted murders of federal judges and their families at their private homes date back to May 29, 1979. Most recently, in July 2020, Judge Esther Salas’s only son, Daniel, was murdered and her husband near-fatally shot at their home. Individuals wishing to inflict such harm or death at federal judges’ homes have been able to do so because of federal judges’ publicly available home addresses. Because personally identifying information (PII) is defined differently from statute to statute, home addresses largely remain public information in most states and can be found in real estate records, data broker websites, social media platforms, …

Boss Battle: Twitch Vs Proposed Amendments To The Knowledge Standard Under The Digital Millennium Copyright Act, Zachary Messick

Journal of Intellectual Property Law

Under the Digital Millennium Copyright Act (DMCA), indirect theories of liability such as vicarious liability and contributory infringement have been inconsistently applied, leading the Copyright Office to recommend lowering the knowledge standard and increasing potential liability for Online Service Providers (OSPs). In this note, I will discuss the histories of vicarious liability and contributory infringement, which demonstrate that courts have correctly applied the standards under the DMCA. Further, through a case-study of Twitch, an up-and-coming streaming website, I will discuss how the proposed amendments drive against the policies underlying the indirect theories of liability and would destroy OSPs like Twitch. …