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Full-Text Articles in Law
The Romantic Corporation: Trademark, Trust, And Tyranny, Malla Pollack
The Romantic Corporation: Trademark, Trust, And Tyranny, Malla Pollack
Malla Pollack
Humans in the United States, and many other market-centric nations, live in a world extensively populated by friendly, helpful, honest, charitable, patriotic beings worthy of our respect and support – none of whom exist. Yet these fellow-beings speak to us humans so often that they must be part of our ingrained perception of the world. Who are they? They are the marketing personas created by totally self-interested businesses. They harm humans not only by misdirection in specific instances, but by providing cover for our government’s improper prioritization of corporate interests over human interests. This systemic distortion of public perception is …
The Owned Public Domain: The Constitutional Right Not To Be Excluded – Or The Supreme Court Chose The Right Breakfast Cereal In Kellogg V. National Biscuit Co., Malla Pollack
Malla Pollack
Before the rise of law and economics, the Supreme Court decided several cases involving patent holders' attempts to use trademark doctrines to slow down competitors after the expiration of their utility patents; in each of these cases, the Court enforced a public right to use material in the public domain. To give one famous example, Kellogg Co. v. National Biscuit Co., the "shredded wheat case," came to the Court after the expiration of a product and process utility patent on that once-innovative breakfast cereal. The Court held that a competitor could freely copy the product's name and its well known …
Unconstitutional Incontestability?: The Intersection Of The Intellectual Property And Commerce Clauses Of The Constitution: Beyond A Critique Of Shakespeare Co. V. Silstar Corp., Malla Pollack
Malla Pollack
This article makes several assertions: (1) The Intellectual Property Clause of the Constitution, even read with the Commerce Clause, prevents Congress from giving authors or inventors exclusive rights unbounded by premeasured time limitations; (2) Because such limits exist, even incontestable trademarks must be subject to functionality challenges in order to prevent conflict with the Patent Clause; (3) The Intellectual Property Clause requires a similar challenge to prevent conflict with the Copyright Clause; (4) The states are also limited by either direct constitutional mandate or statutory preemption. Based on the first two assertions, this article argues that the Fourth Circuit's decision …
Your Image Is My Image: When Advertising Dedicates Trademarks To The Public Domain--With An Example From The Trademark Counterfeiting Act Of 1984, Malla Pollack
Malla Pollack
Trademark laws protect the mental association between the source n4 of a product and the product itself. This protection allows consumers to locate merchandise of known quality, and motivates suppliers to produce better merchandise. The extent to which trademarks are property rights owned by the controller of the items they identify is controversial. These dual purposes of trademark protection are often phrased as if the objectives reinforce one another. Sometimes, however, the interests conflict. If the public's interests are not recognized they cannot be protected. This article suggests the existence of an ignored public ownership interest. Trademarks may become communicative …