Law Commons^™

This article analyzes the original Ninth Circuit opinion in Fleisher Studios, Inc. v. A.V.E.L.A., Inc. in which the court provided a sua sponte discussion of the dispraised doctrine of aesthetic functionality in the context of the contemporary merchandising practices of trademark owners, which analysis was subsequently withdrawn in its entirety by the court six months later when it substituted its former opinion with a new holding on grounds other than aesthetic functionality. The article will begin with an explanation and history of the Lanham Trademark Act, focusing on its twin goals of protection against consumer confusion over the source of …

This article analyzes Kraftwerk, et al. v. Moses Pelham, et al., the recent Federal Court ruling in Germany commonly referred to as the Metall auf Metall case regarding whether the taking of two notes of a digital music sample constitutes infringement of German intellectual property laws. The article will compare the German court holding with the most recent U.S. 6th Circuit case on digital sampling, Bridgeport Music, Inc. v. Dimension Films. The article will begin with an explanation and history of the technique of digital sampling as used by contemporary musicians. It will then explore the similarities and differences between …

This Article analyzes and critiques the recent government seizure of a trademark used and registered by the Mongol Nation, an Outlaw Motorcycle Gang (“OMG”) whose members have been indicted of, and whose leader has pleaded guilty to, serious racketeering crimes under the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) ranging from illegal drug manufacture and sale, to assault, rape, and murder.

After providing an overview of the history and growth of OMGs and their criminal enterprise activities, as well as a discussion of the merchandising activities associated with such activities that are protected by federal trademark law under the …

The purpose of this Article is to contribute to the volume of legal scholarship that focuses on popular music lyrics and their effects on children. This interdisciplinary cross-section of law and culture has been analyzed by legal scholars, philosophers, and psychologists throughout history. This Article specifically focuses on the recent public uproar over the increasingly violent and lewd content of death metal and gangsta -rap music and its alleged negative influence on children. Many legal scholars have written about how legal and political efforts throughout history to regulate contemporary genres of popular music in the name of the protection of …

In sharp contrast with the majority of legal scholarship on the subject matter, this article asserts that, since the emergence of digital sampling technology in the 1970’s, courts and legal scholars alike have failed to fully appreciate the true nature and consequences of allowing legally unchecked digital sampling—that is, until the Sixth Circuit decision in Bridgeport Music, Inc. v. Dimension Films, holding that defendants’ unlicensed sampling of three notes of a copyrighted sound recording constituted a per se infringement. This decision marked the first time a court hearing a sampling case truly discerned the subtle but existent differences between sampling …