Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Intellectual Property Law (56)
- Commercial Law (4)
- International Law (4)
- Business (3)
- Constitutional Law (3)
-
- Science and Technology Law (3)
- Advertising and Promotion Management (2)
- Antitrust and Trade Regulation (2)
- Business Administration, Management, and Operations (2)
- Business Intelligence (2)
- Business Organizations Law (2)
- Civil Procedure (2)
- Comparative and Foreign Law (2)
- Computer Law (2)
- Courts (2)
- Entertainment, Arts, and Sports Law (2)
- International Trade Law (2)
- Legal Education (2)
- Legal Remedies (2)
- Legislation (2)
- Litigation (2)
- Marketing Law (2)
- Tax Law (2)
- Technology and Innovation (2)
- Administrative Law (1)
- American Popular Culture (1)
- American Studies (1)
- Art and Design (1)
- Arts and Humanities (1)
- Institution
-
- University of Georgia School of Law (18)
- The University of Akron (14)
- Boston University School of Law (3)
- Chicago-Kent College of Law (2)
- Loyola University Chicago, School of Law (2)
-
- Selected Works (2)
- University of Cincinnati College of Law (2)
- University of New Hampshire (2)
- Brooklyn Law School (1)
- DePaul University (1)
- Emory University School of Law (1)
- Fordham Law School (1)
- Maurer School of Law: Indiana University (1)
- Pepperdine University (1)
- Roger Williams University (1)
- Santa Clara Law (1)
- Seton Hall University (1)
- Suffolk University (1)
- University of Maine School of Law (1)
- University of Missouri-Kansas City School of Law (1)
- University of Washington School of Law (1)
- Vanderbilt University Law School (1)
- Washington and Lee University School of Law (1)
- Yeshiva University, Cardozo School of Law (1)
- Publication
-
- Journal of Intellectual Property Law (18)
- Akron Intellectual Property Journal (14)
- Faculty Scholarship (3)
- Chicago-Kent Journal of Intellectual Property (2)
- Faculty Articles (2)
-
- Faculty Publications (2)
- Faculty Publications & Other Works (2)
- Law Faculty Scholarship (2)
- Sonia Katyal (2)
- The University of Cincinnati Intellectual Property and Computer Law Journal (2)
- Articles (1)
- Brooklyn Journal of International Law (1)
- College of Law Faculty (1)
- Faculty Works (1)
- Fordham Intellectual Property, Media and Entertainment Law Journal (1)
- Indiana Journal of Global Legal Studies (1)
- Life of the Law School (1993- ) (1)
- Seton Hall Circuit Review (1)
- Suffolk University Law School Faculty Works (1)
- The Journal of Business, Entrepreneurship & the Law (1)
- Vanderbilt Journal of Entertainment & Technology Law (1)
- Washington and Lee Law Review Online (1)
- Publication Type
Articles 1 - 30 of 61
Full-Text Articles in Law
Newsroom: Guiding Startups Through Legal Pickles 11-14-2016, Jill Rodrigues, Roger Williams University School Of Law
Newsroom: Guiding Startups Through Legal Pickles 11-14-2016, Jill Rodrigues, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan
The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan
Faculty Scholarship
When is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to …
Trademark Law, Functional Design Features, And The Trouble With Traffix, Harold R. Weinberg
Trademark Law, Functional Design Features, And The Trouble With Traffix, Harold R. Weinberg
Journal of Intellectual Property Law
Part One of this article briefly defines some terms employed throughout and provides a short review of trademark principles. Parts Two and Three employ different methodologies to illuminate the functionality doctrine and the significance of Traffix. Part Two develops the etymology of important functionality standards including those considered in Traffix. It highlights links among the standards, and between the standards and evidence of functionality. Part Two's etymology suggests Part Three's economic methodology. The strength of the economic lens amplifies and simplifies the doctrine while its limitations help to explain why the functionality doctrine has been problematic and why Traffix is …
Private Property For Public Use: The Federal Trademark Dilution Act And Anticybersquatting Consumer Protection Act As Violations Of The Fifth Amendment Takings Clause, Brian C. Smith
Journal of Intellectual Property Law
No abstract provided.
See Ya Later, Gator: Assessing Whether Placing Pop-Up Advertisements On Another Company's Website Violates Trademark Law, Kirsten M. Beystehner
See Ya Later, Gator: Assessing Whether Placing Pop-Up Advertisements On Another Company's Website Violates Trademark Law, Kirsten M. Beystehner
Journal of Intellectual Property Law
No abstract provided.
Pricey Purchases And Classy Customers: Why Sophisticated Consumers Do Not Need The Protection Of Trademark Laws, Meaghan E. Goodwin
Pricey Purchases And Classy Customers: Why Sophisticated Consumers Do Not Need The Protection Of Trademark Laws, Meaghan E. Goodwin
Journal of Intellectual Property Law
No abstract provided.
State Regulation Of Keyword Advertising: A Lesson From The Utah Legislature, Mary Candice Barrett
State Regulation Of Keyword Advertising: A Lesson From The Utah Legislature, Mary Candice Barrett
Journal of Intellectual Property Law
No abstract provided.
An Alternate Functionality Reality, Harold R. Weinberg
An Alternate Functionality Reality, Harold R. Weinberg
Journal of Intellectual Property Law
The Supreme Court last addressed trade dress law’s functionality doctrine in TrafFix Devices, Inc. v. Marketing Displays, Inc. decided in 2001. This article applies content analysis to data from post-TrafFix functionality cases to provide insights concerning the functionality doctrine. It emphasizes data from cases concerning motions for summary judgment and preliminary injunction. The analysis employs two conceptual constructs: a “useful/aesthetic continuum” and “mixed-character” design features. The article also considers data in light of a “two-bar mandate” and two principles: “useful-scarcity” and “aesthetic-abundance.” It concludes with observations concerning the post-TrafFix functionality doctrine and suggestions for improving its judicial …
Confusion Codified: Why Trademark Remedies Make No Sense, Mark A. Thurmon
Confusion Codified: Why Trademark Remedies Make No Sense, Mark A. Thurmon
Journal of Intellectual Property Law
No abstract provided.
Condemning Clothes: The Constitutionality Of Taking Trademarks In The Professional Sports Franchise Context, Mitchell Diles
Condemning Clothes: The Constitutionality Of Taking Trademarks In The Professional Sports Franchise Context, Mitchell Diles
Washington and Lee Law Review Online
The resurgence in franchise free agency in the National Football League (NFL) potentially implicates the loss of a significant source of local identity and tradition for multiple cities. In January 2016, NFL owners approved the relocation of the Rams franchise from St. Louis, Missouri, to Los Angeles, California, by a vote of thirty-to-two. The owners’ vote also potentially implicates the relocation of the San Diego Chargers and the Oakland Raiders. Though applauded by numerous sports commentators, athletes, and fans, the vote reflects the failure of negotiations between the City of St. Louis and the Rams organization. The approval also sets …
Bullying And Opportunism In Trademark And Right-Of-Publicity Law, Stacey Dogan
Bullying And Opportunism In Trademark And Right-Of-Publicity Law, Stacey Dogan
Faculty Scholarship
Lawyers, scholars, and even Congress have lately expressed concern about so-called “trademark bullies” — trademark holders that assert tenuous legal claims against vulnerable defendants, who often capitulate rather than incurring the expense and uncertainty of litigation. At the same time, we’ve witnessed right-of-publicity claims for acts that never would have raised an eyebrow a few decades ago. Complaints about bullying and overreaching are largely anecdotal rather than empirical, so it’s hard to gauge the extent of the behavior and to measure its costs. But the fact that it has attracted so much attention suggests a perception, at least, that some …
Sine Qua Non: Trademark Infringement, Likelihood Of Confusion, And The Business Of Collegiate Licensing, C. Knox Withers
Sine Qua Non: Trademark Infringement, Likelihood Of Confusion, And The Business Of Collegiate Licensing, C. Knox Withers
Journal of Intellectual Property Law
No abstract provided.
Etw Corp. V. Jireb Publishing, Inc.: Turning An Athlete's Publicity Over To The Public, Michael J. Breslin
Etw Corp. V. Jireb Publishing, Inc.: Turning An Athlete's Publicity Over To The Public, Michael J. Breslin
Journal of Intellectual Property Law
No abstract provided.
"Every Artist Is A Cannibal, Every Poet Is A Thief": Why The Supreme Court Was Right To Reverse The Ninth Circuit In Dastar Corp. V. Twentieth Century Fox Film Corp., Joshua K. Simko
Journal of Intellectual Property Law
No abstract provided.
Does The Lanham Act Lose Meaning For Companies That Operate Exclusively Over The Internet?, Sheila D. Rizzo
Does The Lanham Act Lose Meaning For Companies That Operate Exclusively Over The Internet?, Sheila D. Rizzo
Journal of Intellectual Property Law
This Note will examine the differences between trademark registration and domain name registration, focusing specifically on the terms an applicant may register, the rights associated with those registrations, and the manner in which a registrant may lose, assign, and enforce those rights so that others my not use the same registered terms. This Note will also suggest that a company operating exclusively over the internet may obtain greater rights, and therefore protection, than a typical bricks and mortar company, simply by registering its domain name, and not trademark status.
Exceptionally Vague: Attorney Fee Shifting Under The Lanham Act, Kelsie Willett
Exceptionally Vague: Attorney Fee Shifting Under The Lanham Act, Kelsie Willett
Journal of Intellectual Property Law
No abstract provided.
Clearing The Brush: The Best Solution For The Uspto’S Continued “Deadwood” Problem, Leonard Robert Seifter Iii
Clearing The Brush: The Best Solution For The Uspto’S Continued “Deadwood” Problem, Leonard Robert Seifter Iii
Journal of Intellectual Property Law
No abstract provided.
Trademark Trial And Appeal Board, Meet The Constitution, David S. Welkowitz
Trademark Trial And Appeal Board, Meet The Constitution, David S. Welkowitz
Fordham Intellectual Property, Media and Entertainment Law Journal
For many years, the Trademark Trial and Appeal Board has re-fused to address constitutional claims raised in the course of registration or cancellation proceedings. A recent example involves the Washington Redskins trademark, which is the subject of a cancellation proceeding now before a U.S. Court of Appeals. The Board’s refusal to address constitutional issues rests on the assumption that the Board lacks the authority to make constitutional decisions. That may seem odd, given the fact that the Board is an arm of the federal government, and its members are bound to uphold the Constitution. This Article examines the basis of …
Panel Iii: Trademarks V. Free Speech In Cyberspace, Sonia Katyal, Robert Weisbein, William Mcgeveran, Brett Frischmann
Panel Iii: Trademarks V. Free Speech In Cyberspace, Sonia Katyal, Robert Weisbein, William Mcgeveran, Brett Frischmann
Sonia Katyal
No abstract provided.
Trademark Intersectionality , Sonia K. Katyal
Trademark Intersectionality , Sonia K. Katyal
Sonia Katyal
Even though most scholars and judges treat intellectual property law as a predominantly content neutral phenomenon, trademark law contains a statutory provision, Section 2(a) that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous,” a provision that has raised intrinsically powerful constitutional concerns. The constitutional tensions surrounding Section 2(a), invariably, affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only …
The Trademark As A Novel Innovation Index, Brian J. Focarino
The Trademark As A Novel Innovation Index, Brian J. Focarino
The Journal of Business, Entrepreneurship & the Law
When studying the relationship that exists between entrepreneurship and intellectual property, patents receive the most scholarly attention. The attention makes sense when we consider that patents are closely associated with technical progress, grant temporary monopolies that incentivize investment in research & development (R&D), and function as vectors of technological dissemination in and of themselves. In a number of industries however, conventional forms of innovation often associated with patenting are minimal or missing altogether, and require us to look elsewhere to discern innovative behavior. This Essay highlights novel applications for trademark law to entrepreneurial activity in low-technology industries and low-financing locations …
Andy Warhol's Pantry, Brian L. Frye
Andy Warhol's Pantry, Brian L. Frye
Akron Intellectual Property Journal
This Article examines Andy Warhol’s use of food and food products as a metaphor for commerce and consumption. It observes that Warhol’s use of images and marks was often inconsistent with copyright and trademark doctrine, and suggests that the fair use doctrine should incorporate a “Warhol test.”
Food Patents: The Unintended Consequences, Jay Dratler Jr.
Food Patents: The Unintended Consequences, Jay Dratler Jr.
Akron Intellectual Property Journal
This short paper explores the unintended consequences of this strong economic incentive. The underlying assumptions of patent law and its economic incentive are that innovation is good, and newer is better. But is that always so? Science and history suggest maybe not, for some very fundamental reasons. And there are reasons to believe that the risks of unintended consequences of innovation in food may be more hazardous than those in other fields of innovation.
Some Key Things U.S. Entrepreneurs Need To Know About The Law And Lawyers, Lawrence J. Trautman, Anthony J. Luppino, Malika Simmons
Some Key Things U.S. Entrepreneurs Need To Know About The Law And Lawyers, Lawrence J. Trautman, Anthony J. Luppino, Malika Simmons
Faculty Works
New business formation is a powerful economic engine that creates jobs. Diverse legal issues are encountered as a start-up entity approaches formation, initial capitalization and fundraising, arrangements with employees and independent contractors, and relationships with other third parties. The endeavors of a typical start-up in the United States will likely implicate many of the following areas of law: intellectual property; business organizations; tax laws; employment and labor laws; securities regulation; contracts and licensing agreements; commercial sales; debtor-creditor relations; real estate law; health and safety laws/codes; permits and licenses; environmental protection; industry specific regulatory laws and approval processes; tort/personal injury, products …
Ttab Decisions No Longer The “Red-Headed Stepchild” Of Precedential Authority, Rebecca Knight
Ttab Decisions No Longer The “Red-Headed Stepchild” Of Precedential Authority, Rebecca Knight
The University of Cincinnati Intellectual Property and Computer Law Journal
No abstract provided.
Resolving Priority Disputes In Intellectual Property Collateral, Paul Heald
Resolving Priority Disputes In Intellectual Property Collateral, Paul Heald
Journal of Intellectual Property Law
No abstract provided.
Internationalization And Local Elements: Research On Recent Amendments To The Trademark Law Of China, Xiaoqing Feng
Internationalization And Local Elements: Research On Recent Amendments To The Trademark Law Of China, Xiaoqing Feng
Akron Intellectual Property Journal
This article will explore varying aspects of the amendments of the Chinese Trademark Law. Part Two deals with detailed analysis and the reasons for the third amendment of the Trademark Law; this part is composed of five sections. The first section discusses the perfection of the application system for trademark registration, including the increase of the number of elements eligible for trademark registration, the implementation of “one trademark for multi categories,” the improvement of the system of opposition, the introduction of a proposal review system, and the availability for submitting electronic applications. The second section discusses (1) the improvement of …
Ip And Health Care: New Drugs Pricing And Medical Mistakes, Jay Dratler Jr.
Ip And Health Care: New Drugs Pricing And Medical Mistakes, Jay Dratler Jr.
Akron Intellectual Property Journal
I propose to address briefly two important IP questions from an economic perspective: patented drug pricing in an international context and trade secret protection for health care outcomes. The first will involve some algebra; the second involves a bit of common sense that so far seems to have eluded us.
Trademarks In 2010 (And 2011): Dilution Takes Center Stage, David S. Welkowitz
Trademarks In 2010 (And 2011): Dilution Takes Center Stage, David S. Welkowitz
Akron Intellectual Property Journal
From the hundreds of trademark cases decided in any year, it is often difficult to discern any particular theme. There are cases from many different areas raising very disparate issues. In 2010, however, trademark dilution stands out as the area with the most prominent doctrinal opinions. In addition to three court of appeals decisions, there were five significant Trademark Trial and Appeal Board (“TTAB”) decisions from an entity whose prior involvement in dilution had been very much the exception. These dilution opinions form the centerpiece of this discussion.
There were, of course, other notable decisions involving contributory infringement and the …
The Ethics Of Deception: Pretext Investigations In Trademark Cases, Phillip Barengolts
The Ethics Of Deception: Pretext Investigations In Trademark Cases, Phillip Barengolts
Akron Intellectual Property Journal
Pretext investigations of trademark infringement usually implicate one or more of four rules of professional responsibility: truthful communications, communications with adverse parties represented by counsel, communications with parties unrepresented by counsel, and the prohibition of deceptive behavior. There is an additional rule on using paralegals or non-lawyer assistants to do the actual investigation which also comes into play on occasion.