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Articles 1 - 30 of 36
Full-Text Articles in Law
Advertising In The Garden Of Eden, Mark Bartholomew
Advertising In The Garden Of Eden, Mark Bartholomew
Buffalo Law Review
Millions of people each day log on to participate in "virtual worlds" where they can acquire virtual property, inhabit virtual spaces, and form lasting relationships with other virtual beings. Excited over the potential of a world without physical limitations, commentators extoll the numerous benefits of virtual life and its possibilities as a forum for social experiment. A real threat to this potential Eden exists, however, in the form of advertisers rushing in to sell their wares. Three functional components are present in all advertising - information, persuasion, and personal expression. When these three components are mapped onto the contours of …
The Sunset Of "Quality Control" In Modern Trademark Licensing, Irene Calboli
The Sunset Of "Quality Control" In Modern Trademark Licensing, Irene Calboli
Research Collection Yong Pung How School Of Law
Historically, based on the premise that trademark protection is about consumer welfare, trademark law has allowed trademark licensing only as long as licensors control the quality of the products bearing the licensed marks. Ever since its adoption, however, this rule has been difficult to enforce because it hinges on a concept that is ambiguous and difficult to frame in a legal context: quality control. Unsurprisingly, the consequence has been inconsistent case law and much uncertainty as to what represents valid licensing. In addition, in the past decades, courts have proven increasingly reticent to strictly apply this rule and have declared …
Vol. Vi, Tab 38 - Ex. 20 - Email From Lena Huang, Lena Huang
Vol. Vi, Tab 38 - Ex. 20 - Email From Lena Huang, Lena Huang
Rosetta Stone v. Google (Joint Appendix)
Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?
Trademark Extortion: The End Of Trademark Law, Kenneth L. Port
Trademark Extortion: The End Of Trademark Law, Kenneth L. Port
Kenneth L. Port
Trademark litigation in America today is undergoing a profound change. Based on a review of all trademark cases reported since the Lanham Act took effect, this article concludes that this profound change is due to 鍍rademark extortion,・the use of strike suits and the like to deter market entrants. All 7,500 reported trademark decisions between 1947 and 2005 were read. Of those, 2,659 were truly substantive cases that terminated a trademark law suit. The claimant of a trademark right prevailed only 51% of the time. They prevailed in getting an injunction in only 55% of those cases demanding one. Only 5.5% …
Property, Persona, And Publicity, Deven R. Desai
Property, Persona, And Publicity, Deven R. Desai
Deven R. Desai
This article focuses on a paradox latent within the nature of creative phenomenon: although one can find strong arguments for control over intangible creations during one’s life, these arguments falter if not fail after the creator dies. Two interconnected problems posed by the growth of online creation illustrate the problem. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people’s property all the time. In addition, when one dies, some …
Trademark Extortion: The End Of Trademark Law, Kenneth L. Port
Trademark Extortion: The End Of Trademark Law, Kenneth L. Port
Kenneth L. Port
Trademark litigation in America today is undergoing a profound change. Based on a review of all trademark cases reported since the Lanham Act took effect, this article concludes that this profound change is due to 鍍rademark extortion,・the use of strike suits and the like to deter market entrants. All 7,500 reported trademark decisions between 1947 and 2005 were read. Of those, 2,659 were truly substantive cases that terminated a trademark law suit. The claimant of a trademark right prevailed only 51% of the time. They prevailed in getting an injunction in only 55% of those cases demanding one. Only 5.5% …
The Cultural Property Claim Within The Same Sex Marriage Controversy, Marc R. Poirier
The Cultural Property Claim Within The Same Sex Marriage Controversy, Marc R. Poirier
Marc R. Poirier
The Cultural Property Claim within the Same Sex Marriage Controversy.
Marc R. Poirier, Seton Hall University School of Law
This article argues that traditionalist opposition to same sex marriage can be understood as a cultural property claim -- the sort of claim that is often made by Native American tribes and other subordinated cultural groups of a right to control the uses of sacred or culturally central rituals, places and objects. Ultimately, it disagrees with the traditionalist position, and argues that traditionalists should not be allowed to maintain a property-like right to exclude same sex couples from marriage. Nevertheless, the …
Vol. Ix, Tab 41 - Ex. 22 - Email From Lena Huang (Rosetta Stone Online Marketing), Lena Huang
Vol. Ix, Tab 41 - Ex. 22 - Email From Lena Huang (Rosetta Stone Online Marketing), Lena Huang
Rosetta Stone v. Google (Joint Appendix)
Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?
Trademark Law As Commercial Speech Regulation, Rebecca Tushnet
Trademark Law As Commercial Speech Regulation, Rebecca Tushnet
Rebecca Tushnet
False advertising law has largely escaped constitutional scrutiny because courts consider false or misleading commercial speech outside the protection of the First Amendment. Even moderate First Amendment protection for truthful commercial speech, however, requires some constitutional policing of the line between truth and falsity. Current enforcement of false advertising law, whether administrative, as with the FDA's regulation of drug-related speech, or judicial, as with Lanham Act suits brought by private parties, is ill-equipped to deal with First Amendment doctrine's very different concerns, rules, and presumptions. This essay explores some of the ways in which the First Amendment and trademark law—a …
The Extended Protection Of "Strong" Trademarks, Nicola Bottero, Andrea Mangani, Marco Ricolfi
The Extended Protection Of "Strong" Trademarks, Nicola Bottero, Andrea Mangani, Marco Ricolfi
Marquette Intellectual Property Law Review
Economic investment in trademarks is not necessarily indicative of product quality, as trademark protection does not provide incentive for continuous product quality improvement. The authors begin their analysis by exploring the function of trademarks from the perspectives of traditional law and economics. Such an analysis points to a conflict between the legal and economic interpretation of the function of trademarks. Particularly, the authors suggest that the traditional economic perspective of trademarks fails to justify the legal existence of strong brands and their extensions. This argument is tested through the review of advertising, brand extension, and product quality literature. The authors …
Vol. Ix, Tab 46 - Ex. 6 - Email From Amc@Google.Com, Google
Vol. Ix, Tab 46 - Ex. 6 - Email From Amc@Google.Com, Google
Rosetta Stone v. Google (Joint Appendix)
Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?
That’S A Fine Chablis You’Re Not Drinking: The Proper Place For Geographical Indications In Trademark Law., Justin Hughes, Lynne Beresford, Annette Kur, Kenneth Plevan, Susan Scafidi
That’S A Fine Chablis You’Re Not Drinking: The Proper Place For Geographical Indications In Trademark Law., Justin Hughes, Lynne Beresford, Annette Kur, Kenneth Plevan, Susan Scafidi
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Geographical Indications: The Current Landscape., Lynne Beresford
Geographical Indications: The Current Landscape., Lynne Beresford
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Nothing But A Gi Thing: Geographical Indications Under Eu Law., Annette Kur, Sam Cocks
Nothing But A Gi Thing: Geographical Indications Under Eu Law., Annette Kur, Sam Cocks
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Consumer Gripe Sites, Intellectual Property Law, And The Use Of Cease-And-Desist Letters To Chill Protected Speech On The Internet. , Rachael Braswell
Consumer Gripe Sites, Intellectual Property Law, And The Use Of Cease-And-Desist Letters To Chill Protected Speech On The Internet. , Rachael Braswell
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
The Normative Foundations Of Trademark Law, Mark Mckenna
The Normative Foundations Of Trademark Law, Mark Mckenna
Journal Articles
This paper challenges the conventional wisdom that trademark law traditionally sought to protect consumers and enhance marketplace efficiency. Contrary to widespread contemporary understanding, early trademark cases were decidedly producer-centered. Trademark infringement claims, like all unfair competition claims, were intended to protect producers from illegitimate attempts to divert their trade. Consumer deception was relevant in these cases only to the extent it was the means by which a competitor diverted a producer's trade. Moreover, American courts from the very beginning protected a party against improperly diverted trade in part by recognizing a narrow form ofproperty rights in trademarks. Those rights were …
Intellectual Property, Free Trade Agreements And Economic Development, Anselm Kamperman Sanders
Intellectual Property, Free Trade Agreements And Economic Development, Anselm Kamperman Sanders
Georgia State University Law Review
No abstract provided.
Re-Evaluating Declaratory Judgment Jurisdiction In Intellectual Property Disputes, Lorelei Ritchie De Larena
Re-Evaluating Declaratory Judgment Jurisdiction In Intellectual Property Disputes, Lorelei Ritchie De Larena
Lorelei Ritchie de Larena
The Declaratory Judgment Act of 1934 was quickly tagged by the U.S. Supreme Court as a simple procedural measure. Whether simple or procedural, the addition of the declaratory judgment option has dramatically increased the rights of would-be defendants. This is of special interest in patent law, where without the ability to initiate legal action, an alleged infringer would typically have no recourse but to either drop a lucrative business and lose a massive investment, or to languish in legal limbo while potentially accruing liability for treble damages. The option of a mirror-image lawsuit removes the patentee’s ability to unilaterally decide …
The Lawfulness Of Criticizing Big Business: Comparing Approaches To The Balancing Of Societal Interests Behind Trademark Protection, Katja G. Weckstroem
The Lawfulness Of Criticizing Big Business: Comparing Approaches To The Balancing Of Societal Interests Behind Trademark Protection, Katja G. Weckstroem
Katja G Weckstroem
Today, third parties that have not traditionally been subject to trademark law increasingly find themselves as defendants in trademark infringement law suits. Whether the culprit or not, strong international trademark protection has unevenly influenced national trademark regulation and the lack of emphasis and clear reference to limits on the acquired right have left courts struggling with how to balance conflicting interests in the use of marks. This note goes back to the source, i.e. international trademark law, in an attempt to locate the limits of trademark law, expressed or implied, and ascertain whether there exists a common understanding of when …
The Trademark Jurisprudence Of Judge Rich, Jeffrey M. Samuels, Linda B. Samuels
The Trademark Jurisprudence Of Judge Rich, Jeffrey M. Samuels, Linda B. Samuels
American University Law Review
For nearly forty-three years, Giles Sutherland Rich served as a member of the U.S. Court of Customs and Patent Appeals (C.C.P.A.) and its successor court, the U.S. Court of Appeals for the Federal Circuit. Judge Rich is widely regarded as one of the most influential jurists in the area of patent law—and rightfully so. Less well known is that Judge Rich also authored many significant decisions in the area of trademark law. Judge Rich’s opinions in the area of trademarks span the spectrum of trademark registrability issues and explore important issues of public policy. This Article reviews a number of …
Total Upgrade: Intellectual Property Law Reform In Russia, Sergey Budylin, Yulia Osipova
Total Upgrade: Intellectual Property Law Reform In Russia, Sergey Budylin, Yulia Osipova
Sergey Budylin
Russia has undertaken a large-scale intellectual prop-erty (IP) law reform. The reform abolishes most of the ex-isting IP legislation and instead puts all IP issues into the new Fourth Part of the Civil Code. The new legislation was signed into force at the end of 2006, but it was made effective starting from January 1, 2008. While the new leg-islation largely restates, consolidates, and refines the exist-ing legislation, it also introduces some concepts not known to Russian law before (such as “unified technology”). Im-portantly, the new Russian IP legislation addresses issues currently being a matter of international concern (such as …
Accidental Rights, James Gibson
Accidental Rights, James Gibson
Law Faculty Publications
Written for the Yale Law Journal's online Pocket Part, this is a much shorter and (I hope) more accessible iteration of my earlier paper, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882 (2007). It summarizes that paper's central point - i.e., that intellectual property entitlements are growing not just because of expansive court decisions and legislative enactments, but also because of seemingly sensible, risk-averse licensing decisions that inadvertently feed back into legal doctrine - and then explores how this phenomenon might apply to (and be manipulated by) enterprises such as Google Book Search.
Online Word Of Mouth And Its Implications For Trademark Law, Eric Goldman
Online Word Of Mouth And Its Implications For Trademark Law, Eric Goldman
Faculty Publications
This Chapter discusses the emergence of online word of mouth, the process by which consumers disseminate their views about marketplace goods and services. Due to online word of mouth, consumers have an unprecedented ability to influence the brand perceptions of other consumers. Unfortunately, these effects have put doctrinal pressure on trademark law, leading to judicial interpretations that inhibit the flow of online word of mouth and may damage the efficacy of marketplace mechanisms. This Chapter will explore how trademark law should be interpreted to preserve the flow of socially beneficial online word of mouth.
The Sunset Of "Quality Control" In Modern Trademark Licensing, Irene Calboli
The Sunset Of "Quality Control" In Modern Trademark Licensing, Irene Calboli
American University Law Review
Historically, based on the premise that trademark protection is about consumer welfare, trademark law has allowed trademark licensing only as long as licensors control the quality of the products bearing the licensed marks. Ever since its adoption, however, this rule has been difficult to enforce because it hinges on a concept that is ambiguous and difficult to frame in a legal context: quality control. Unsurprisingly, the consequence has been inconsistent case law and much uncertainty as to what represents valid licensing. In addition, in the past decades, courts have proven increasingly reticent to strictly apply this rule and have declared …
To Live In In-‘Fame’-Y: Reconceiving Scandalous Marks As Analogous To Famous Marks, Jasmine C. Abdel-Khalik
To Live In In-‘Fame’-Y: Reconceiving Scandalous Marks As Analogous To Famous Marks, Jasmine C. Abdel-Khalik
Faculty Works
In 1905, Congress enacted a revised trademark registration act, which included a prohibition on registering marks containing or consisting of scandalous or immoral material. Because Congress failed to provide any further guidance either in legislative history or in the statutory language, administrative bodies and the courts have struggled to define this standard. Over the past century, decisions applying this prohibition have been inconsistent. The general public and potential trademark owners are unable to predict accurately if a mark will be accepted or refused for federal registration, which has some significant benefits. Perhaps because of this uncertainty, some estimate that hundreds …
Collateralizing Intellectual Property, Xuan-Thao Nguyen
Collateralizing Intellectual Property, Xuan-Thao Nguyen
Articles
This Article identifies and critiques the collateralization of intellectual property, revealing the complexity of intersecting secured transaction law, namely Article 9 of the Uniform Commercial Code, and doctrinal intellectual property laws such as patent law, copyright law, and trademark law. The inquiry challenges the silence surrounding the pervasive use of intellectual property as collateral in secured financing and suggests changes to the existing framework on secured financing law.
The Article proceeds as follows: Part II discusses the normative intellectual property rights for patents, copyrights, and trademarks and how such rights are utilized as corporate assets. Part III describes different forms …
Review Of The 2006 Trademark Decisions Of The Federal Circuit, Christine Haight Farley, Geri L. Haight
Review Of The 2006 Trademark Decisions Of The Federal Circuit, Christine Haight Farley, Geri L. Haight
American University Law Review
The United States Court of Appeals for the Federal Circuit (“Federal Circuit”) delivered only seven precedential trademark opinions in 2006. This small proportion of trademark cases is consistent with the court’s docket in recent years. This year, the court addressed a range of interesting substantive issues including trade dress configuration, reverse passing off, and genericism. Notably, two of the seven precedential decisions involved plant names protected by the Plant Variety Protection Act. The Federal Circuit decided only one case in 2006 where the primary issue was procedural, rather than substantive. In that case, discussed below, the Federal Circuit sided with …
From Infringement To Innovation: Counterfeiting And Enforcement In The Brics, J. Benjamin Bai, Keith D. Lindenbaum, Yi Qian, Cynthia Ho
From Infringement To Innovation: Counterfeiting And Enforcement In The Brics, J. Benjamin Bai, Keith D. Lindenbaum, Yi Qian, Cynthia Ho
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
The Existing Legal Infrastructure Of Brics: Where Have We Been And Where Are We Going?, Robert B. Ahdieh, Zhu (Julie) Lee, Srividhya Ragavan, Kevin Noonan, Clinton W. Francis
The Existing Legal Infrastructure Of Brics: Where Have We Been And Where Are We Going?, Robert B. Ahdieh, Zhu (Julie) Lee, Srividhya Ragavan, Kevin Noonan, Clinton W. Francis
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Washington "Redskins" -Disparaging Term Or Valuable Tradition?: Legal And Economic Issues Concerning Harjo V. Pro-Football, Inc., Mark S. Nagel, Daniel A. Rascher
Washington "Redskins" -Disparaging Term Or Valuable Tradition?: Legal And Economic Issues Concerning Harjo V. Pro-Football, Inc., Mark S. Nagel, Daniel A. Rascher
Fordham Intellectual Property, Media and Entertainment Law Journal
"I'll never change the name of the Redskins. You have my word on that. In addition to that, it's really what the Redskins mean that's not quite out there.., what it means is tradition. It means winning. It means a great tradition for the franchise."
-Daniel Snyder (owner of the Washington Redskins).
"A long habit of not thinking a thing wrong gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom."
-Thomas Paine.