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Full-Text Articles in Intellectual Property Law
Non-Traditional Trademarks: The Error Costs Of Making An Exception The Rule, Glynn Lunney
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 …
The Commodification Of Trademarks: Some Final Thoughts On Trademark Dilution, Kenneth L. Port
The Commodification Of Trademarks: Some Final Thoughts On Trademark Dilution, Kenneth L. Port
Faculty Scholarship
This article is an explication of the trend toward commodification of famous or putatively famous trademarks and the resultant urging that the FTDA be repealed. This article starts with a literature review showing that the vast majority of commentators have been severely critical of the FTDA. This has been ignored by Congress. The article next pursues Congress's blind support of the FTDA and suggests that more thought and analysis from Congress is still required. The article next explains the data regarding FTDA claims. All reported cases from 1996 through 2015 are coded and examined. The conclusion, looking at the data, …
Moral Rights In The U.S.: Still In Need Of A Guardian Ad Litem, Jane C. Ginsburg
Moral Rights In The U.S.: Still In Need Of A Guardian Ad Litem, Jane C. Ginsburg
Faculty Scholarship
Over ten years ago, in the pages of this Journal, I inquired whether authors’ “moral rights” had come of (digital) age in the U.S. Ever-hopeful at that time, I suggested that then-recent legislation enacted to enable the copyright law to respond to the challenges of digital media might, in addition to its principal goal of securing digital markets for works of authorship, also provide new means to protect authors’ interests in receiving attribution for their works and in safeguarding their integrity. The intervening years’ developments, however, indicate that, far from achieving their majority, U.S. authors’ moral rights remain in their …
"See Me, Feel Me, Touch Me, Hea[R] Me" (And Maybe Smell And Taste Me, Too): I Am A Trademark – A Us Perspective, Jane C. Ginsburg
"See Me, Feel Me, Touch Me, Hea[R] Me" (And Maybe Smell And Taste Me, Too): I Am A Trademark – A Us Perspective, Jane C. Ginsburg
Faculty Scholarship
The preceding chapter, “Between a sign and a brand,” addresses the current law in the UK and the EU regarding which signs can be a registered trademark, and the scope of protection a trademark receives. Jennifer Davis also considers the extent to which that scope does or should cover the more ineffable subject matter of “brand values.” This comment from the perspective of United States trademark law will follow a similar plan. It first will address what is (and is not) a trademark, focusing on the extensions of trademarks beyond traditional word marks and design marks (logos; trade dress [get-up]) …
The Author's Name As A Trademark: A Perverse Perspective On The Moral Right Of "Paternity"?, Jane C. Ginsburg
The Author's Name As A Trademark: A Perverse Perspective On The Moral Right Of "Paternity"?, Jane C. Ginsburg
Faculty Scholarship
The US. Supreme Court in its 2003 decision in Dastar v. Twentieth Century Fox, construing the Lanham Federal Trademarks Act, deprived authors of their principal legal means to enforce attribution rights in the US. I have elsewhere criticized the Dastar Court's analysis, and have urged amending the Copyright Act to provide express recognition of the attribution right. This time, however, I propose to reconsider the foundation for the attribution right; I draw on literary and historical sources to supplement legal arguments concerning the meaning of the author's name. I will suggest that, contrary to the usual characterization of this …
Trademarks And Consumer Search Costs On The Internet, Stacey Dogan
Trademarks And Consumer Search Costs On The Internet, Stacey Dogan
Faculty Scholarship
In theory, trademarks serve as information tools, by conveying product information through convenient, identifiable symbols. In practice, however, trademarks have increasingly been used to obstruct the flow of information about competing products and services. In the online context, in particular, some courts have recently allowed trademark holders to block uses of their marks that would never have raised an eyebrow in a brick-and-mortar setting - uses that increase, rather than diminish, the flow of truthful, relevant information to consumers. These courts have stretched trademark doctrine on more than one dimension, both by expanding the concept of actionable "confusion" and by …
The Illegitimacy Of Trademark Incontestability, Kenneth L. Port
The Illegitimacy Of Trademark Incontestability, Kenneth L. Port
Faculty Scholarship
The concept of incontestability in American trademark law has caused great confusion ever since its adoption as part of United States trademark law in 1946. This Article is first a study of the rational basis for incontestability in American trademark law. The role of incontestability in the larger regime of American trademark law is established in order to understand incontestability as it fits within the history of the common law of trademarks. This is fundamental in order to understand the significance of the thesis that incontestability is illegitimate. Next, acquisition of incontestability is presented in order to show how simple …