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Full-Text Articles in Law
Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern
Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern
James Y. Stern
How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …
The Grammar Of Trademarks, Laura A. Heymann
The Grammar Of Trademarks, Laura A. Heymann
Laura A. Heymann
How do people talk when they talk about trademarks? If trademarks have
become, as linguist Geoffrey Nunberg suggests, our “new global tongue,”
perhaps we should pay greater attention to the grammar we use when we
talk about them. We use “Coke” to refer to the Coca-Cola beverage in the
North, and “coke” to refer to any kind of soda in the South, yet we still
manage to get the drinks we desire. We use trademarks as verbs—we
“xerox” a document or “tivo” a television program—without losing sight
of the fact that “Xerox” and “TiVo” are brands of particular products.
We …
Naming, Identity, And Trademark Law, Laura A. Heymann
Naming, Identity, And Trademark Law, Laura A. Heymann
Laura A. Heymann
As the process of creation in the age of digital media becomes more fluid, one pervasive theme has been the desire for attribution: from the creator’s perspective, to receive credit for what one does (and to have credit not falsely attributed) and from the audience’s perspective, to understand the source of material with which one engages. But our norms of attribution reflect some inconsistencies in defining the relationship among name, identity, and authenticity. A blog post by a writer identified only by a pseudonym may prove to be very influential in the court of public opinion, while the use of …
Spill-Over Reputation: Comparative Study Of India & The United States, Srividhya Ragavan
Spill-Over Reputation: Comparative Study Of India & The United States, Srividhya Ragavan
Srividhya Ragavan
This paper compares India’s position with that of the US on the question of protection of well-known marks in the light of applicable international legal prescriptions. The discussion in this paper compares protection for famous foreign marks (as opposed to a famous mark). Famous foreign marks are those that have acquired fame in one country and hence, well-known in another country.
Section By Section Commentary On The Tpp Final Ip Chapter Published 6 November 2015 – Part 1 – General Provisions, Trade Mark, Gis, Designs, Kimberlee G. Weatherall
Section By Section Commentary On The Tpp Final Ip Chapter Published 6 November 2015 – Part 1 – General Provisions, Trade Mark, Gis, Designs, Kimberlee G. Weatherall
Kimberlee G Weatherall
This note comments on the TPP general provisions and rules on trade mark, GIs, and designs. It also compares each provision to multilateral and bilateral treaties. The material here is necessarily preliminary and does not purport to be complete. It is published on the basis that it may assist others’ analysis and commentary.
Intellectual Property Rights Management In Small And Medium Size Social Enterprise In Australia, Francina Cantatore, Elizabeth Spencer
Intellectual Property Rights Management In Small And Medium Size Social Enterprise In Australia, Francina Cantatore, Elizabeth Spencer
Francina Cantatore
This paper identifies the role and significance of Intellectual Property (IP) management in small and medium-sized social enterprises (SMSEs) and aims to address a gap in the available literature dealing with IP use and management in social enterprise. The findings are based on the results of a qualitative study undertaken with Australian SMSEs, in the form of in-depth semi-structured interviews. The research identifies how SMSEs view and manage their IP rights, and the significance of these rights in the organisation. The findings suggest that there is a significant lack of IP rights management strategies for protection of IP assets such …
Information Technology And The Law - Trademarks In Cyberspace, Macerata 2015, Ulf Maunsbach
Information Technology And The Law - Trademarks In Cyberspace, Macerata 2015, Ulf Maunsbach
Ulf Maunsbach
No abstract provided.
Nsfw: An Empirical Study Of Scandalous Trademarks, Megan M. Carpenter
Nsfw: An Empirical Study Of Scandalous Trademarks, Megan M. Carpenter
Megan M Carpenter
This project is an empirical analysis of trademarks that have received rejections based on the judgment that they are “scandalous." It is the first of its kind. The Lanham Act bars registration for trademarks that are “scandalous” and “immoral.” While much has been written on the morality provisions in the Lanham Act generally, this piece is the first scholarly project that engages an empirical analysis of 2(a) rejections based on scandalousness; it contains a look behind the scenes at how the morality provisions are applied throughout the trademark registration process. We study which marks are being rejected, what evidence is …
Cases For Lecture 3; Trademarks, Macerata 17 March 2015, Ulf Maunsbach
Cases For Lecture 3; Trademarks, Macerata 17 March 2015, Ulf Maunsbach
Ulf Maunsbach
No abstract provided.
Who Cares About The 85 Percent? Reconsidering Survey Evidence Of Online Confusion In Trademark Cases, Daniel Gervais, Julie M. Latsko
Who Cares About The 85 Percent? Reconsidering Survey Evidence Of Online Confusion In Trademark Cases, Daniel Gervais, Julie M. Latsko
Daniel J Gervais
There is an assumption in US trademark law that the protection of consumer interests—a traditional normative pillar of trademark law--is best achieved by enjoining use by a defendant of a mark that creates a likelihood of confusion (with the plaintiff’s mark) for 15% or more (sometimes less) of relevant consumers. Courts often use survey evidence to determined existence of the likelihood of confusion. This article argues that the interests of all consumers are relevant in that determination. This means that determining the costs, if any, imposed on nonconfused consumers should also be part of the equation. This can be accomplished …
N.I.G.G.A., Slumdog, Dyke, Jap, And Heeb: Reconsidering Disparaging Trademarks In A Post-Racial Era, Amanda E. Compton
N.I.G.G.A., Slumdog, Dyke, Jap, And Heeb: Reconsidering Disparaging Trademarks In A Post-Racial Era, Amanda E. Compton
Amanda E. Compton
Currently registration of disparaging trademarks is prohibited under Section 2(a) of the Lanham Act. Recent events, however, should reinvigorate the debate about the protection and registration of disparaging marks: (1) recent decisions published by the Trademark Trial and Appeal Board (TTAB) that continue to address and highlight the issues surrounding the registration of disparaging marks; (2) a proposed federal act that would not only specifically bar the registration of any trademark that includes the word “redskins,” but would also retroactively cancel any existing registration that consist of or includes that term; and (3) an amendment to a state act that …
Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky
Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky
Alex Stein
This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls the plaintiff’s right and relieves not only the defendant, but also the entire world of the duty to comply with it. An individualized defense is much narrower in scope: Its successful showing defeats the specific infringement claim asserted by the plaintiff, but leaves the plaintiff’s right intact. Class defenses form an in-between category: They create an immunity zone for a certain group of users to …
Acquiring A Flavor For Trademarks: There’S No Common Taste In The World, Amanda Compton
Acquiring A Flavor For Trademarks: There’S No Common Taste In The World, Amanda Compton
Amanda E. Compton
This paper considers the viability of registering “flavor” as a trademark based on the decision in In re N.V. Organon. Nontraditional trademarks have long been accepted in the United States, and the possibility of being able to protect flavor as a trademark is on the horizon. In 2002, N.V. Organon, a global manufacturer of an array of prescription medicines, filed a trademark application to register “an orange flavor” for “pharmaceuticals for human use, namely, antidepressants in quick-dissolving tablets and pills.” The Examining Attorney refused registration on two grounds: (1) the matter failed to function as a trademark; and (2) the …
Svensk Domstols Behörighet Vid Gränsöverskridande Varumärkestvister – Särskilt Om Internetrelaterade Intrång [Jurisdiction In Cases Of Cross-Border Trademark Infringements], Ulf Maunsbach
Ulf Maunsbach
No abstract provided.