Marketing Law Commons^™

The Trademark Dilution Revision Act's Nullifying Effect On Famous Mark Holder's Dilution Claims, Kathleen Bodenbach

Marquette Intellectual Property Law Review

This comment will address how the TDRA has left famous mark holders, particularly high-end fashion house Louis Vuitton, with little in its arsenal to prevent others from mocking and devaluing its marks despite its worthy efforts. Part II addresses the relationship between trademark infringement, dilution, and parody. Part III takes a closer look at fashion giant Louis Vuitton’s strides to protect its famous marks and the courts’ differing approaches to assessing whether a parody exists. Part III also addresses the relationship between parody when it does and does not operate as a designation of source. Part IV offers a discussion …

The Opioid Crisis: The States' And Local Governments' Response To Bigpharma's Deception And Why The Supremacy Clause May Provide A Cloak For Opioid Manufacturers To Hide Behind, Tracie Childers

Barry Law Review

No abstract provided.

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, …

“I’Ll Know It When I See It”: Defending The Consumer Financial Protection Bureau’S Approach Of Interpreting The Scope Of Unfair, Deceptive, Or Abusive Acts Or Practices (“Udapp”) Through Enforcement Actions, Stephen J. Canzona

Journal of Legislation

No abstract provided.

Telemarketing, Technology, And The Regulation Of Private Speech: First Amendment Lessons From The Fcc’S Tcpa Rules, Justin (Gus) Hurwitz

Brooklyn Law Review

This article considers the viability of the Telephone Consumer Protection Act (TCPA) in light of recent Supreme Court First Amendment precedent and technological and regulatory developments. Robocalls—phone calls made using autodialers or prerecorded messages without the consent of the call recipient—have become one of the primary consumer protection issues facing regulators. With more than 2.4 billion of these calls placed each month, consumer concern about them dominate complaints received by both the Federal Communications Commission and Federal Trade Commission. Simultaneously, as cellphones have become a ubiquitous means by which individuals engage with one another and have become the public square, …

A Fixed Game: The Frustrations Of Ticket Scalping And The Realities Of Its Solutions, Dylan C. Porcello

Brooklyn Law Review

Due to the rapid growth of the secondary resale market, purchasing tickets at their face-value price is becoming a fleeting expectation. While ticket scalping has existed quite possibly as long as tickets themselves have, innovations in invasive purchasing practices are leading to unprecedented profit margins for ticket scalpers and a greater distance between consumers and the original ticket sale. With ticket scalpers employing advanced ticket purchasing software, referred to as bots, consumers are left with no option but to surrender to steep resale prices, which often have no ceiling. Though ticket scalping regulation has developed, these legislative efforts have been …

A Hole In Need Of Mending: Copyright And The Individual Marking Of Advertisements Published In Collective Works, Randy D. Gordon

Randy D. Gordon

Over 20 years ago, the United States brought its copyright law into sync with international norms through the adoption of the Berne Convention. As a result, copyright notice is no longer a prerequisite to copyright protection. But because Congress implemented the Berne Convention through amendments to the (rather than adoption of a wholly new) Copyright Act, litigants have argued and at least some courts have held that certain works still must be noticed. This Article is concerned to rebut that contention.

Uncharted Waters? Legal Ethics And The Benefit Corporation, Joseph Pileri

St. Mary's Journal on Legal Malpractice & Ethics

Corporate law norms are reflected in lawyers’ ethical duties. The enactment of benefit corporation legislation across the country signals a legislative acknowledgment that corporate law can serve as a public, rather than a merely private, ordering mechanism. Benefit corporations expressly adopt a public benefit as a legal purpose of the enterprise. While many have written about this important development with respect to corporate fiduciary law, this essay is the first to explore the professional and ethical responsibility of lawyers representing benefit corporations. In the last century, as scholars and courts drove an understanding of corporate law that elevated the interests …

Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum

The University of Cincinnati Intellectual Property and Computer Law Journal

This paper examines the tension between the First Amendment and Publicity Rights considering why and how friction is emerging, the legal underpinnings and theories behind the development of publicity rights and how to reconcile this with values raised in support of the First Amendment. This collision course of rights occurs where property interests have vested in human identity itself which brings us face to face with the outer limits of free speech and expression under the First Amendment and evens tests the notion of how we define speech. The paper takes a dive into some of the currently arising issues …

Commercializing Children: Laws And Regulations Affecting Advertisements Directed At Children In France, Spain, And Sweden, Neil M. Browne, Nancy K. Kubasek, Justin Rex, Robert Horton

Economics Faculty Publications

From a financial perspective there may be no better investment, or more sensible target for advertising than one directed at the interests of children. This focus is perfectly understandable for a firm aiming to maintain a continually expanding and predictable source of profit. What children lack in spending power compared to other age groups, they make up for in potential longevity to consume, as well as their sheer amount of exposure to such advertising outlets, not only in hours spent, but in the various forms of technology to which they are regularly exposed. Children have an uncanny ability to mold …

The Potemkin Temptation Or, The Intoxicating Effect Of Rhetoric And Narrativity On American Craft Whiskey, Derek H. Kiernan-Johnson

Publications

No abstract provided.

Do We Need Help Using Yelp? Regulating Advertising On Mediated Reputation Systems, David Adam Friedman

University of Michigan Journal of Law Reform

Yelp, Angie’s List, Avvo, and similar entities enable consumers to access an incredibly useful trove of information about peer experiences with businesses and their goods and services. These “mediated reputation systems,” gatherers and disseminators of consumer peer opinions, are more trusted by consumers than traditional commercial channels. They are omnipresent, carried everywhere on mobile devices, and used by consumers ready to transact.

Though this information is valuable, a troubling conflict emerges in its presentation. Most of these reputation platforms rely heavily on advertising sales to support their business models. This reliance compels these entities to display persuasive advertising right along …

Yershov V. Gannett: Rethinking The Vppa In The 21st Century, Ariel A. Pardee

Maine Law Review

Almost anyone with a smartphone can recall a time when an online advertisement followed them from webpage to webpage, or mobile browser to mobile application, or even jumped from a mobile device to a desktop web browser. While some people see it as a harmless—or even helpful—quirk of the online world, others find it creepy and intrusive. In the absence of significant government regulation of online advertising practices, particularly aggrieved individuals have sought relief in the courts by alleging violations of ill-fitting statutes drafted decades ago. This note explores just such a case, Yershov v. Gannett, in which the First …

A Compromise - Adding A Knowledge Requirement To Rule 13b2-2 Of The Securities Exchange Act Of 1934, Danielle K. Shaffer

Akron Law Review

The United States Securities and Exchange Commission (SEC) was established to protect investors and support fair and efficient financial markets. To combat bribery of foreign officials in the practice of business, the Foreign Corrupt Practices Act enacted Section 13(b) of the Securities Exchange Act of 1934. Generally, Section 13(b) establishes requirements for the financial records, internal controls, and accounting of public companies. Section 13(b) maintains stricter requirements for financial records for the public and SEC to easily detect illegal activity as well as to deter the companies from participating in these activities. Following the Sarbanes-Oxley Act of 2002, the SEC …

The Need For Strict Morality Clauses In Endorsement Contracts, Caysee Kamenetsky

Pace Intellectual Property, Sports & Entertainment Law Forum

The increasing significance of morality clauses seems to directly correlate with the increase of social media platforms and avenues to live-stream events, including but not limited to Facebook, Snapchat, Instagram, and Twitter. News of an athlete’s behavior can go viral in a matter of seconds. This leads company brands to seek broader terms in their morality clauses to allow them to disassociate themselves from the athlete. However, this is not always fair to the athlete, who might not have any idea that their personal-life choices could lead to the end of an endorsement contract.

Restoring Rogers: Video Games, False Association Claims, And The “Explicitly Misleading” Use Of Trademarks, 16 J. Marshall Rev. Intell. Prop. L. 306 (2017), William K. Ford

William K. Ford

Courts have long struggled with how to balance false association claims brought under the Lanham Act with the protections for speech under the First Amendment. The leading approach is the Rogers test, but this test comes in multiple forms with varying degrees of protection for speech. A substantial portion of the litigation raising this issue now involves video games, a medium that more so than others, likely needs the benefit of a clear rule that protects speech. The original version of the test is the simplest and the one most protective of speech. In 2013, the Ninth Circuit endorsed the …

Going … Going … Public? Taking A United States Professional Sports League Public, Ian A. Mclin

William & Mary Business Law Review

The four major American professional sports leagues—the MLB, NBA, NHL, and NFL—are wildly popular, but the leagues fail to capitalize fully on their success because they are organized in a largely inefficient manner. By organizing as unincorporated non-profits, leagues forgo their ability to raise capital via investors, forcing taxpayers to bear the burden of league investments such as new stadium construction. Further, the current organizational model creates a collective action problem, as self-interested team owners focus their support on actions that benefit their own franchise and leave ineffective commissioners in power.

A solution to these problems is for a professional …

Rethinking Children's Advertising Policies For The Digital Age, Angela J. Campbell

Georgetown Law Faculty Publications and Other Works

This article describes major changes in how video content and advertising is delivered to consumers. Digital technologies such as broadband allow consumers to stream or download programming. Smart phones and tablets allow consumers to view screen content virtually anywhere at any time. Advertising has become personalized and integrated with other content.

Despite these major changes in the media markets, the framework for regulating advertising to children has not changed very much since the 1990s. This article argues that the existing regulatory framework must be reinvented to protect children in the digital age. It uses Google’s recently introduced YouTube Kids app …

Source, Character And Taxable Presence In A Digital World: International Taxation Of Online Advertising, Assaf Prussak

SJD Dissertations

The purpose of this dissertation is to examine the application of the U.S. and international tax rules and norms to income derived from online advertising, to consider the challenges and problems that arise when these rules are applied to such a purely-digital type of income, to propose an alternative framework for the taxation of online advertising, and to discuss the legislative measures adopted by various countries in an attempt to tax this type of income (and other income derived from digital-based activities).

If It's In The Game: Is There Liability For User-Generated Characters' Likeness?, 16 J. Marshall Rev. Intell. Prop. L. 291 (2017), Jason Zenor

UIC Review of Intellectual Property Law

In cases like Keller and No Doubt v. Activision, the federal courts held that the use of celebrity's likeness was a violation of the right of publicity. In response, EA Sports suspended production of college sports games. But most games still allow for gamers to create their own avatars. With game systems now being connected, gamers can download user-created content many of which will have the likeness of famous people, thus circumventing the holdings in Keller and No Doubt. Accordingly, this article examines how this type of user generated content fits within the law of appropriation. First, this article discusses …