Law Commons^™

Introduction To The Protection Of Non-Traditional Trademarks: Critical Perspectives, Irene Calboli

Faculty Scholarship

During the past decades, the domain of trademark law and the scope of trademark protection have been expanded significantly. The flexible application of prerequisites for registration has paved the way for the recognition of a wide variety of signs as subject matter eligible for trademark protection. This includes single colors, shapes, sounds, smells, video clips, holograms, and even gestures. However, this expansion of the scope of trademark protection has been accompanied only by a partial expansion of the grounds for refusal relating to these registrations and the creation of defenses that permit unauthorized use in the interest of freedom of …

Non-Traditional Trademarks: The Error Costs Of Making An Exception The Rule, Glynn Lunney

Faculty Scholarship

Over the last sixty years, courts and the USPTO have engaged in an ill-advised expansion of trademark subject matter. Where once only words or emblems attached to a product could serve as a trademark, today a product’s design or packaging itself may receive such protection. This expansion was and is a mistake. There may indeed be rare cases where a product’s design or packaging conveys brand-specific information and could receive protection without impairing competitor’s ability to offer substitutes. Such cases are the exception and not the rule, however. Extending the strong legal presumptions and property-like protection trademark law provides to …

Hands Off “My” Colors, Patterns, And Shapes! How Non-Traditional Trademarks Promote Standardization And May Negatively Impact Creativity And Innovation, Irene Calboli

Faculty Scholarship

This chapter criticizes the protection of non-traditional trademarks (NTTMs) by focusing on three specific examples from the fashion industry: Louboutin, Gucci, and Bottega Veneta. In particular, besides repeating that granting exclusive rights to NTTMs equates in foreclosing competitors and third parties from using any identical and similar product design and products feature, this chapter highlights an additional problem related to the protection of NTTMs. Notably, that, by recognizing and protecting as marks elements that are product design and aesthetic product features, protecting these marks supports a system of intellectual property protection that promotes standardization, rather than creativity and innovation, in …

Two-Tiered Trademarks, Glynn Lunney

Faculty Scholarship

Today, we have a two-tiered trademark system. In the top tier, both parties can afford to litigate. In the lower tier, only one party can. This two-tiered system has arisen over the last century because courts refused to follow the law. Faced with trademark law that led to seemingly unjust outcomes in the case before them, courts rewrote trademark law. When those initial rewrites led to different sorts of seeming injustice as cases continued to arise, courts rewrote trademark law again and again. Moreover, judges rewrote trademark law not as part of any systemic and coherent plan for trademark law, …

Free Trade, Immigrant Workers, And Employment Discrimination, Angela D. Morrison

Faculty Scholarship

This article reframes the outward-looking perspective on workers’ rights provisions in free trade agreements. It argues that those provisions provide an opportunity to reinforce the workplace rights of noncitizen workers in the United States. Scholars and worker advocates have criticized recent free trade agreements for their lack of enforcement mechanisms and protections for workers in developing countries. They argue that this has encouraged a race to the bottom on the part of multi-national corporations who relocate to developing countries to take advantage of cheap labor costs, thereby costing U.S. workers’ jobs.

This article shifts the focus. Instead, it argues that …

Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann

Faculty Scholarship

The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote lowcarbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for …

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Faculty Scholarship

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Regulation A+: New And Improved After The Jobs Act Or A Failed Revival?, Neal Newman

Faculty Scholarship

This piece is a follow-up to a previous article that I wrote on Regulation A. In April of 2012, then President Barack Obama signed into law the Jumpstart our Business Start Ups (JOBS) Act. Under the JOBS Act’s Title IV, Congress made revisions to a private offering exemption referred to as Regulation A with the intention of reviving an exempt offering option that was close to dormant. The primary Regulation A criticism being that issuers were required to do too much in terms of providing business and financial disclosure where the most the issuer could raise though a Regulation A …

Consumer Protection, Matthew J. Mcgowan

Student Scholarship

The Texas Deceptive Trade Practices-Consumer Protection Act (DTPA)1 focuses on consumer harm brought about through deception.2 This article covers significant developments under the DTPA during the Survey period, December 1, 2016, through November 31, 2017.

Some of the salient changes to the DTPA came through statutory additions inserted by the 85th Texas Legislature during the Summer 2017 session, which added to the DTPA’s laundry list of violative acts and also amended the Texas Insurance Code such that related DTPA claims may be more easily removed to federal court. Also, case law developments have, among other things, revealed that certain DTPA …

Counter-Revolutionary: Liberalism, Capital Punishment, And The Next Step Forward, Jason G. Tiplitz

Student Scholarship

Capital punishment is anathema to liberal notions of human rights and civil liberties. It is time to finally cast it aside as an anachronistic vestige of bygone times. The death penalty is fundamentally incompatible with a truly liberal state.

Centering Women In Prisoners' Rights Litigation, Amber Baylor

Faculty Scholarship

This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth.”29 This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being.

This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an …

Preventing Sexual Harassment And Misconduct In Higher Education: How Lawyers Should Assist Universities In Fortifying Ethical Infrastructure, Susan Saab Fortney

Faculty Scholarship

The shocking reports of sexual misconduct involving Larry Nassar, the former physician at Michigan State University, captured attention worldwide. More than 300 women sued alleging that the university ignored or dismissed complaints. In Congressional testimony the former president of Michigan State apologized and noted that an independent review of the university's policies revealed that they were among the most robust that the consultants had seen. This raises the question as to how sexual misconduct could have gone unaddressed for many years. The answer to this question may be found in a 2018 Consensus Report of the National Academies of Sciences, …

The Fine Print Of The Mexican Energy Reform, Guillermo J. Garcia Sanchez

Faculty Scholarship

Five years ago, when Mexico transformed its energy sector, most commentators were worried about the government’s capacity to implement the reform. What would the upstream contracts look like? Would the auctions be transparent? How would international companies react? After two successful auction rounds, 107 signed contracts, and the creation of viable regulatory agencies to manage and monitor the reform agenda, the questions have changed. Today, Mexico’s capacity to implement energy reforms and attract foreign investment is no longer in doubt. Today, the most pressing questions about the reform concern its long-term sustainability. Can it survive the Mexican electoral cycles? Will …

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne Barnes

Faculty Scholarship

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that …

Supreme Verbosity: The Roberts Court's Expanding Legacy, Mary Margaret Penrose

Faculty Scholarship

The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.

It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, …

Copyright Lost, Glynn Lunney

Faculty Scholarship

In this essay, I revisit my 2001 article, The Death of Copyright, for the Franklin Pierce Center for Intellectual Property’s Redux Conference. In The Death of Copyright, I worried that copyright, as a law that serves “to promote the Progress of Science,” had died. Instead, with the enactment of the Digital Millennium Copyright Act, I feared that copyright had returned to a system of guild privileges that served only to maximize the rents of copyright owners. At the time I wrote the article, file sharing had just begun. Yet, the content industries were already proclaiming that the sky was falling. …

Tpp, Rcep And The Future Of Copyright Norm-Setting In The Asian Pacific, Peter K. Yu

Faculty Scholarship

The past decade has seen two mega-regional intellectual property norm-setting exercises focusing on countries in the Asian Pacific region: the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP). Taken together, these two mega-regional norm-setting exercises will have unlimited potential to shape future copyright norms in the Asian Pacific region.

For countries involved in either the TPP or RCEP negotiations, legal obligations concerning new protection and enforcement standards will have to be incorporated into domestic law once the applicable agreement enters into force. These standards can be quite burdensome, as they often exceed what is currently required by the …

If You Would Not Criminalize Poverty, Do Not Medicalize It, William M. Sage, Jennifer E. Laurin

Faculty Scholarship

American society tends to medicalize or criminalize social problems. Criminal justice reformers have made arguments for a positive role in the relief of poverty that are similar to those aired in healthcare today. The consequences of criminalizing poverty caution against its continued medicalization.

Property-As-Society, Timothy M. Mulvaney

Faculty Scholarship

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception …

Enough Said: A Proposal For Shortening Supreme Court Opinions, Meg Penrose

Faculty Scholarship

The role of the judiciary, Chief Justice Marshall famously advised, is “to say what the law is.” Yet, how often do the justices issue a written opinion that ordinary Americans can understand? The Supreme Court increasingly issues lengthy and complex opinions, often containing multiple concurring and dissenting opinions. These opinions can be as confusing as they are verbose.

“To Say What the Law Is Succinctly: A Brief Proposal,” analyzes the justices’ legal writing. Are the justices effective in saying what the law is? Insufficient attention has been devoted to evaluating the justices’ writing and their efficacy at communicating the law. …

A Cognitive Theory Of The Third-Party Doctrine And Digital Papers, H. Brian Holland

Faculty Scholarship

For nearly 200 years, an individual’s personal papers enjoyed near-absolute protection from government search and seizure. That is no longer the case. With the widespread adoption of cloud-based information processing and storage services, the third-party doctrine operates to effectively strip our digital papers of meaningful Fourth Amendment protections.

This Article presents a new approach to reconciling current third-party doctrine with the technological realities of modern personal information processing. Our most sensitive data is now processed and stored on cloud computing systems owned and operated by third parties. Although we may consider these services to be private and generally secure, the …

Flooding Events Post Hurricane Harvey: Potential Liability For Dam And Reservoir Operators And Recommendations Moving Forward, David Ayala, Ashley Graves, Colton Lauer, Henrik Strand, Chad Taylor, Kyle Weldon, Ryan Wood

EENRS Program Reports & Publications

When Hurricane Harvey hit the Texas coast as a category 4 hurricane on August 25, 2017, it resulted in $125 billion in damage, rivaling only Hurricane Katrina in the amount of damage caused. It also resulted in the deaths of 88 people and destroyed or damaged 135,000 homes. Much of that devastation was the result of flooding. The storm dumped over 27 trillion gallons of rain over Texas in a matter of days. Some parts of Houston received over 50 inches of rainfall.

The potential liability that dam and reservoir operators may face for decisions they make during storm and …

Getting It Right: Title Ix's Role In Adjudicating Sexual Assault Claims, Meg Penrose

Faculty Scholarship

Article Extract:

I want to start with a very important point: sexual assault is a crime. We have a serious issue in the United States with sexual assault and sexual harassment. We are seeing this play out right now, and I think the “Me Too” campaign has brought important attention to this issue. An issue that impacts not only our college residence halls, but, as we have seen, the halls of Congress. Serious people are not debating whether sexual assault and sexual harassment pose a societal problem. Rather, serious people are debating how to adequately address these issues without compromising …

Patient Safety And The Ageing Physician: A Qualitative Study Of Key Stakeholder Attitudes And Experiences, Andrew A. White, William M. Sage, Paulina H. Osinska, Monica J. Salgaonkar, Thomas H. Gallagher

Faculty Scholarship

Background Unprecedented numbers of physicians are practicing past age 65. Unlike other safety-conscious industries, such as aviation, medicine lacks robust systems to ensure late-career physician (LCP) competence while promoting career longevity.

Objective To describe the attitudes of key stakeholders about the oversight of LCPs and principles that might shape policy development.

Design Thematic content analysis of interviews and focus groups.

Participants 40 representatives of stakeholder groups including state medical board leaders, institutional chief medical officers, senior physicians (>65 years old), patient advocates (patients or family members in advocacy roles), nurses and junior physicians. Participants represented a balanced sample from …

Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol

Faculty Scholarship

Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication services too often …

Trademark's Judicial De-Evolution: Why Courts Get Trademark Cases Wrong Repeatedly, Glynn Lunney

Faculty Scholarship

Trademark law has de-evolved. It has transitioned from an efficient mechanism for ensuring competition into an inefficient regime for capturing economic rents. In this Article, I focus on the role that party self-interest has played in biasing the evolution of trademark law. This self-interest tends to lead parties to (1) challenge efficient legal rules and seek to replace them with inefficient, anticompetitive rules, and (2) accede to inefficient, anticompetitive rules once they are in place. Almost by definition, when a rule of trademark law promotes competition, it reduces the market surplus or rents that current producers capture. As a result, …

The Porous Court-Agency Border In Patent Law, Saurabh Vishnubhakat

Faculty Scholarship

The progression toward reevaluating patent validity in the administrative, rather than judicial, setting became overtly substitutionary in the America Invents Act. No longer content to encourage court litigants to rely on Patent Office expertise for faster, cheaper, and more accurate validity decisions, Congress in the AIA took steps to force a choice. The result is an emergent border between court and agency power in the U.S. patent system. By design, the border is not absolute. Concurrent activity in both settings over the same dispute remains possible. What is troubling is the systematic weakening of this border by Patent Office encroachments …

The (Re)Newed Barrier To Access To Medication: Data Exclusivity, Srividhya Ragavan

Faculty Scholarship

This Article is set in the background of the consequences of the WTO’s prescriptions on patenting of life-saving medications which has largely contributed to the morphing of patents o n life-saving medication into a luxury. Remarkably, there has been a transformation of the role of patents in the context of pharmaceutical innovation into a strategic business tool leading to a larger interest in creation and sustenance of regulatory rights. The biggest global development in this area is an increased effort to strengthen exclusivity using regulatory protections for all chemicals, and even, biologics, involved in all stages of drug development. Consequently, …

The Way Pavers: Eleven Supreme Court-Worthy Women, Meg Penrose

Faculty Scholarship

Four women have served as Associate Justices on the United States Supreme Court. Since the Court’s inception in 1789, 162 individuals have been nominated to serve as Supreme Court Justices. Five nominees, or roughly 3 percent, have been women. To help put this gender dearth in perspective, more men named “Samuel” have served as Supreme Court Justices than women. Thirteen U.S. Presidents have nominated more people to the Supreme Court than the total number of women that have served on the Court. Finally, there are currently more Catholics serving on the Supreme Court than the number of women appointed in …

Can Clean Energy Policy Promote Environmental, Economic, And Social Sustainability?, Felix Mormann

Faculty Scholarship

Two and a half decades of clean energy policymaking focused primarily on environmental and economic sustainability have yielded considerable environmental and economic benefits. Along the way, however, other policy considerations, such as the social sustainability of the transition to a cleaner, renewably fueled energy economy, have gone largely overlooked. As clean energy technologies continue to gain ever-greater traction in the United States and global energy economies, the social impacts of their enabling policies become more and more salient. Already, ratepayers, taxpayers, and other stakeholders who fear being left behind by the clean energy transition question the “fairness” of today’s renewable …